plainant. This testimony is excluded by the law of this state. Here, in cases where an executor or administrator is a party to a cause, neither party can testify either as to the original transaction or to the receipt of the letters from Patrick Denash, for both matters are within the letter and spirit of the prohibition of the statute. No effort was made by the complainant to prove the signature or handwriting of Patrick Denash, but on the other hand there is testimony by an expert in handwriting expressing an opinion, in not very strong terms, based on a comparison of handwriting of letters from John Denash, that the two letters relied on by the complainant as being letters received from Patrick Denash, were in the handwriting of the complainant. There were also letters from the complainant to his brother, Patrick, and others, offered in evidence, between 1906 and 1909 which might be construed as inconsistent with the existence of the trust relation claimed by the complainant. On the whole, then, there is no satisfactory evidence to show that the two letters purporting to be from Patrick Denash were from him to his brother, John Denash, and so the proofs of the complainant, of all kinds, are insufficient. There are also elements of improbability respecting the claim, under all the facts, which, in the absence of some clear, uncontradicted testimony, a judge or jury would rightly consider in reaching a conclusion.

establish his case without the benefit of any discovery or admission of the defendant. The defendant sets up in the proof no affirmative defense, but a negative one, and can do so without an express denial of the facts charged by the complainant, because of its representative character. The same is true as to the testimony respecting the forgery, for the letters are not attached to the bill, or even a copy thereof, and until produced in evidence the defendant could neither admit or deny their authenticity, and when produced could surely show the forgery of them as a defense. The testimony of the defendant, speaking generally, was, therefore, admissible in this case, even though the defenses to which the testimony was applicable were not set out in the answer.

For the reasons stated, then, I am convinced that the complainant has failed to show satisfactorily that he is entitled to the relief sought, and the bill should be dismissed with costs on the complainant.

1.

(10 Del. Ch. 229) COYLE v. KIERSKI et al. (Court of Chancery of Delaware. Dec. 13, 1913.).

SPECIFIC PERFORMANCE (§ 97*)-RIGHT TO SPECIFIC PERFORMANCE.

appointed, or show excuse for delay, to be A vendee must either perform at the time entitled to specific performance; and hence where a vendee, who had an option to purchase, failed to tender performance at the time fixed, by reason of her negligence and that of her attorney, she is not entitled to specific performance.

[Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 286-298; Dec. Dig. § 97.*]

2. SPECIFIC PERFORMANCE (§ 93*)-CONTRACTS

-TIME.

[3, 4] The conclusion that the complainant is not entitled to the equitable relief sought is based largely on the defects in the proofs made by him. The complainant's counsel argued that practically all the testimony submitted by the defendant was inadmissible, inasmuch as the defenses which such testimony substantiated were not set up in the answer. It is, of course, true that in chanWhile in equity time is not of the essence cery an answer is two fold in character, in of a contract, and the mere failure of a purthat it contains discovery and sets up the chaser to pay the purchase price at the time defense on which the defendant relies to de- fixed does not ordinarily forfeit his rights, yet where the vendor expressly made time of the feat the bill, and, furthermore, that a deessence of the contract, and demanded perfendant cannot avail himself of any matter formance on a stipulated day, the vendee's of defense which he has not set up in his anfailure to perform will bar her rights, and she cannot thereafter claim specific performance. swer, even though it should appear in his evi[Ed. Note.-For other cases, see Specific Perdence. Langdell's Summary of Equity Plead-formance, Cent. Dig. §§ 245-248; Dec. Dig. § ing, 90. It is urged by the complainant that the defendant, because it did not set up in its bill the defenses (1) that Patrick Denash was in America and not in England in 1888. Where a vendor of land, on the failure of the purchaser to consummate the contract at the year in which the money was paid as the time fixed, notified the purchaser that, unclaimed in the bill, and (2) that the two let-less the purchase was consummated on a givters were forgeries, it could prove facts to make out these defenses. But this contention is obviously unsound. The defendant being an executor, in its answer to the bill could and should make answers on information and belief as to matters to which, as it says therein, it was a stranger. 2 Daniell's Chancery Practice, *255. This it did, and thereby put the complainant to the proof of all the averments of his bill necessary to

93.*]

3. VENDOR AND PURCHASER (§ 93*) CONTRACTS RESCISSION.

en day, the contract would be rescinded, the vendor, upon the purchaser's failure to do so, is entitled to terminate the contract.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 153, 154; Dec. Dig. § 93.*]

4. VENDOR AND PURCHASER (§ 168*)
TRACTS-PERFORMANCE.

CON

Where an owner of land entered into a unilateral contract for its conveyance, the purchaser must tender performance on the date fixed for payment, or within an extension

Wilbur L. Adams, of Wilmington, for complainant. Edward W. Cooch, of Wilmington, Thereafter, on August 12th, the seller drove for defendants Kierski. Charles B. Evans, of several miles to the residence of the pur-Wilmington, for defendant Newark Trust & chaser and complained of nonperformance on Safe Deposit Co. her part on August 12th, and gave further notice, fixing 6 o'clock p. m., at a certain place, on August 13th, for a settlement, with the further notice that unless the land be then paid for the contract would be at an end, and the land would be sold to another

claimed took the conveyance with notice of He may have had a special use for the the complainant's rights. Several points were money at that time, or other offers for the raised in the case, but it is not necessary property, which he might lose with no remeto consider all of them. It may be assumed, dy against the vendee in a unilateral conthough not so decided, that the written re-tract, either in the way of damages for nonceipt given by the vendor to the vendee for performance, or by a decree for specific pera small payment on account of the purchase formance by the vendee. The court is not money sufficiently described the premises in- at liberty to revise the contract, or speculate tended to be sold, and was in other respects on, or contravene the intentions or purposes sufficient to comply with the statute of of one who sells his land. Nor can it subfrauds; and that the defendant, the grantee stitute for his its judgment as to the sufof the vendor, had notice of the rights of ficiency of his reasons for requiring payment the complainant, and bought the land at its for his land to be made at a certain time. peril, and, therefore, subject to the right of or in a certain method. He can waive his the complainant to have the land instead of rights to a prompt payment, but the court such grantee. should not waive them for him, on the ground that the reasons he gives therefor are considered by the court not sufficient.

[1, 2] There are, however, valid reasons, based on her own conduct, why the complainant is not entitled to enforce specifical- Assuming, however, that time was not of ly the contract. Though she did not perform the essence of the contract, the complainant the contract according to its terms, in that has not shown herself to have been reasonshe did not pay the balance of the purchase ably diligent in performing her part. The money on the day fixed in the receipt, such only excuse for her failure to perform, eiperformance was waived by the vendor, and ther on August 11th, 12th, or 13th, or before until 6 o'clock p. m. on August 13, 1913, the August 17th, was because an examination vendee was not in default for such nonper- of title had not been made, and because a formance. Upon her failure to perform her certain plot of the land had not been suppart at that time, the vendor immediately plied by the vendor until August 13th. These rescinded the contract and sold and convey- reasons are clearly inadequate to justify her ed the land to another person. The failure delays. In June she had employed counsel of the complainant to so perform bars her to examine the title and he had ample opfrom the remedy she seeks. It was the duty portunity to make the examination, which of the vendee to be ready to perform on was not in fact begun until August 14th. August 13th at 6 o'clock p. m. A vendee There is no evidence that the plot was necmust either perform at the time appointed.essary to such examination, or that there or show sufficient excuse for any delay, and was not of record all the information needed in general must show himself to have been for the purpose. Even after August 9th, and "ready, desirous, prompt and eager" to per-before August 13th at 6 o'clock p. m., the form on his part. This has frequently been examination might have been made, for the stated by the courts of this state and elsewhere. Kinney v. Redden et al., 2 Del. Ch. 46, 52, 54; Wilkins v. Evans, 1 Del. Ch. 156, 165; Maxfield v. Terry, 4 Del. Ch. 618. It is also equally well settled that, general-punctual, or reasonably ready. ly, time is not in equity of the essence of the contract, and the mere failure of the vendee to pay the purchase price at the time fixed in the contract does not forfeit his rights. But time may be made essential by agreement, or by implication from the circumstances under which the contract is made. There is testimony to show that the vendor at the time the contract was made gave reasons, sufficient to her, why prompt payment was required. The vendee was thereafter bound to diligence proportionate and the vendee's right thereunder be ended. to the circumstances. It may be that time was so made of the essence of the contract, though such a provision was not incorporated in the receipt given by the vendor, but it is not necessary to so hold. It is true, generally, that as against a nonperforming vendee, interest on the purchase money is deemed an equivalent for such default. But it is not necessarily true.

There may be reasons, sufficient to the

legal counsel of the vendee had on August 9th, in his possession, the receipt of the vendor. Independent of other considerations, to be considered later, the vendee has not been

[3] There is a further reason why the complainant is not entitled to the relief. Even though time of performance be not essential, still where the vendee fails to perform on the day fixed for performance by him, and the vendor notifies the vendee that unless he perform his part within a reasonable time, stated in the notice, the contract will be terminated, then upon the failure of the vendee to perform within such specified time, the vendor may then terminate the contract

3 Pomeroy's Equity Jurisprudence, § 1408, note and cases cited; 36 Cyc. 714; 2 Story's Equity Jurisprudence, 776; Rogers v. Saunders, 16 Me. 92, 33 Am. Dec. 635; Wiswall v. McGowan, Hoff. Ch. (N. Y.) 125. The principle is thus stated by Story:

"If time is not originally made by the parties of the essence of the contract, yet it may become so by notice, if the other party is afterwards guilty of improper delays

For the reasons above stated, the bill must be dismissed, and the costs imposed on the complainant, but on application of the complainant the decree will contain a provision that it will not be effective as to Florence Kierski until she has repaid, or tendered, to the complainant the portion of the purchase money paid by the complainant. Let a decree be entered accordingly.

The reasonableness of the time depends on | part, she would have been entitled to enforce the circumstances of each case, and is to be her right under the contract, even though not judged as of the date when given. It is also bound to perform on her part. Matthes v. said that notice must be explicit to the ef- Wier, 84 Atl. 878. Inasmuch, however, as fect that the contract will be terminated if part of the purchase money has actually been not completed within the time set. Reynolds paid, the complainant is entitled to have it v. Nelson, 6 Madd. 60 (56 Eng. Reprint, 817). repaid to her. Even if the time be unreasonable, the giving of the notice imposes on the vendee a duty to act promptly. Chabot v. Winter Park, 34 Fla. 258, 15 South. 756, 43 Am. St. Rep. 192; Rogers v. Saunders, 16 Me. 92, 33 Am. Dec. 635. Notice was given by the ven- | dor to the vendee on August 11th and again on August 12th that the failure of the vendee to pay the purchase money would cause a termination of the contract. Under the circumstances such notice was reasonable and at least imposed on the vendee the duty to extra diligence. Therefore, because of the notice and her failure to perform according thereto, the vendor had a right to terminate the contract on August 13th.

[4] It is also urged by the defendant that the receipt constituted a unilateral contract, binding only on the vendor and not on the vendee, and the latter was therefore bound to be ready on the date fixed for payment by her, or, at least, at the subsequent date fixed by the indulgence of the vendor. There are authorities which hold that time is essential where there are not mutual remedies, or the contract is unilateral; as for instance, where the contract is signed only by the person to be charged. Here the other party is not bound, and there is some reason for holding that the one not bound must fulfill on his part according to the contract. Pomeroy's

(122 Md. 236) NORTHERN CENT. RY. CO. et al. v. OLDENBURG & KELLEY, Inc.

(Court of Appeals of Maryland. Jan. 14, 1914.) 1. EMINENT DOMAIN (§§ 271, 273*)-"TAKING OF PROPERTY"-WHAT CONSTITUTES TAKING, The continuous discharge of a stream of water from a railroad roundhouse on adjoining property was a taking of such adjoining property within the constitutional provision that private property shall not be taken for public use without compensation, and entitled the adjoining owner to damages, and an injunction restraining further like injuries.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. 88 725-736, 741, 743-749, 752, 754-764; Dec. Dig. §§ 271, 273.*] 2. NUISANCE (§ 3*)-WHAT CONSTITUTES NUI

SANCE-POLLUTION OF ATMOSPHERE.

entitled to damages resulting from the injuries caused thereby.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. §§ 4, 5, 9-25; Dec. Dig. § 3.*] 3. EMINENT DOMAIN (§ 276*)

Where the atmosphere in the vicinity of a and noxious fumes, dust, soot, and gases from railroad roundhouse was impregnated with smoke the roundhouse, so that it would corrode materials, weaken and finally destroy paint films and fabrics, and irritate the respiratory organs, causing serious inconvenience and positive danEquity Jurisprudence, § 1048, and note; Fryger to health, an owner of nearby property was on Specific Performance, § 733; Brooke v. Garrod, 3 Kay & J. 608; s. c. 2 De G. & J. 62; Austin v. Tawney, L. R. 2 Ch. 143; Potts v. Whitehead, 20 N. J. Eq. 55; Jones v. Noble, 3 Bush (Ky.) 694; Mason v. Payne, 47 Mo. 517; Estes v. Furlong, 59 Ill. 298, 300; Stembridge v. Stembridge, 87 Ky. 91, 7 S. W. 611; Harding v. Gibbs, 125 Ill. 85, 17 N. E. 60, 8 Am. St. Rep. 345; Magoffin v. Holt, 62 Ky. (1 Duv.) 95; Keffer v. Grayson, 76 Va. 517, 44 Am. Rep. 171; Bodine v. Glading, 21 Pa. 50, 59 Am. Dec. 749; Phipps v. Munson, 50 Conn. 267; Clarno v. Grayson,

30 Or. 111, 46 Pac. 426; Westerman v. Mearns, 12 Pa. 97; Miller v. Cameron, 45 N. J. Eq. 95, 15 Atl. 842, 1 L. R. A. 554.

-

"TAKING OF PROPERTY"-POLLUTION OF ATMOSPHERE. The injuries caused to such nearby property from such smoke and fumes was an incidental or consequential injury, and not a taking of property within the constitutional provision prohibiting the taking of private property for public use without just compensation, and hence the owner was not entitled to an injunction against the operation of the roundhouse. main, Cent. Dig. § 774; Dec. Dig. § 276.*] 4. RAILROADS (§ 222*)-WHAT CONSTITUTES

[Ed. Note. For other cases, see Eminent Do

NUISANCE-POLLUTION OF ATMOSPHERE.

Where it did not appear that a railroad roundhouse which impregnated the atmosphere with smoke and noxious fumes, and which was constructed under the charter powers granted to the railroad by the state, and was necessary to the efficient operation of its road, was located in such a place or constructed in such a manner as to amount to negligence, that it was impropmanagement and operation, such smoke and noxious fumes could, by proper care and diligence, be eliminated, its maintenance could not be enjoined as a nuisance.

The principle seemingly established by these and other cases seems to be reasonable. At least, it is true, that in cases of unilateral contracts the party not bound thereby is held strictly to extreme diligence in perform ing the contract. In the case under consider-erly or negligently operated, or that, by proper ation, such diligence is clearly wanting, without sufficient excuse or justification therefor. It is not meant, however, that the contract is not enforceable because of a want of mutuality, for if the vendee had performed her

[Ed. Note.-For other cases, see Railroads, Cent. Dig. 88 720-724; Dec. Dig. § 222.*]

Appeal from Circuit Court, Baltimore, was, on the 23d day of March, 1910, the ownCounty, in Equity; Wm. H. Harlan, Judge.

"To be officially reported."

Bill in equity by Oldenburg & Kelley, Incorporated, against the Northern Central Railway Company and others. From an order overruling a demurrer to the bill, defendants appeal. Affirmed.

er in fee simple and in possession of a large tract of land at Highlandtown, in the Twelfth election district of Baltimore county. On that day the appellee company conveyed a portion of said lot of land to one Samuel C. McFarland, who, on the 2d day of December, 1910, conveyed the same to the appellants,

The following is the plat referred to in the the Northern Central Railway Company and opinion: the Philadelphia, Baltimore & Washington

Argued before BOYD, C. J., and BRIS- | Railroad Company, and these companies, toCOE, BURKE, PATTISON, URNER, gether with the Pennsylvania Railroad ComSTOCKBRIDGE, and CONSTABLE, JJ,

Shirley Carter, of Baltimore (Bernard Carter & Sons, of Baltimore, on the brief), for appellants. John Holt Richardson and Thomas G. Hayes, of Baltimore, for appellee.

PATTISON, J. As alleged in its bill, the

pany, the other appellant named, constructed thereon a large building known as a roundhouse, which is described in one of the plaintiff's exhibits filed with its bill as the place where the locomotives, after they have made a trip, are brought for the purpose of cleaning the grates, tubes, and front end of the