tracted with the sanitary district of the city of Chicago to excavate for the district a portion of the drainage canal, and the contract provided for a forfeiture by the district in case the plaintiff should be in default in the progress or character of the work, and it was held that the forfeiture would be enforced, since the inconvenience to the public resulting from a failure to have the canal excavated could not be measured in money.315 And even if the contract contains no provision making time of the essence, it may be made so, unless this is forbidden by statute,316 by a subsequent demand for performance fixing a definite date for it, and declaring an intention to rescind or declare a forfeiture on failure at that time. In a case in New York, a letter from the vendor of real property to the vendee, written after the time fixed for closing the title, to the effect that he must make an additional payment, otherwise the vendor would offer the property for sale, was held insufficient to constitute notice of the time and place of closing the title, so as to make time of the essence and put the vendee in default, but only because it fixed no definite time either for closing the title or for paying the additional sum.317

Where the question concerns the payment of the last installment of the purchase price of realty, as we have already stated, it is generally held that the vendor should put the vendee in default by the tender of a deed and a demand for payment. And if the vendor is then dead, it is said that a deed should be made and tendered by his widow and heirs, and if payment is not made, the heirs may declare a forfeiture.318

It is said that in mining contracts, involving the sale or lease of mines or oil or gas territory, time is always more or less of the essence of the contract. Thus, a contract to convey mining claims on the payment of part of the price

315 Harley v. Sanitary District of Chicago, 226 Ill. 213, 80 N. E. 771.

316 See, for instance, Rev. Codes Mont. § 5047, providing that time shall not be of the essence of a contract unless expressly so provided. See Fratt v. Daniels-Jones Co., 47 Mont. 487, 133 Pac. 700.

317 Foland v. Italian Savings Bank, 123 App. Div. 598, 108 N. Y. Supp. 57. And see Auxier v. Taylor, 102 Iowa, 673, 72 N. W. 291. 318 Peck v. Brighton Co., 69 Ill. 200.

right will be recognized and enforced by the courts, unless the circumstances of the particular case show that it would be grossly inequitable to do so.312 Thus, where land is sold under a contract making time of the essence, and calling for payment by installments under penalty of forfeiture for non-payment, and every installment has been paid except the last, which is not paid at the time fixed, the vendor may declare a forfeiture, unless he has agreed to perform some act necessary to complete his contract, such as giving an abstract of title or tendering a deed, in which case his right to forfeit depends on his offer and ability to perform, his duty to tender performance being in that case concurrent with the duty of the purchaser to make the final payment.313

A clause making the time of performance essential may be inserted in the contract, and this is a proper precaution, if such is the intention of the parties. But the fact that time is regarded as of the essence may also be a proper inference from the circumstances of the case, although it is not so expressed. This was ruled, for instance, in a case where a contractor had undertaken to deliver iron pipe to a city for its use, under a penalty for each day's delay, and he gave a written order for such pipe to a manufacturer, which was accepted the same day. The time of delivery was left blank, but the understanding of the parties was that the contractor was to telegraph the date the next day, which he did, fixing the delivery "within nine weeks from date,” and the order was then entered by the manufacturer. Great delay was experienced in securing deliveries of the pipe, and finally, after the expiration of the period so fixed, the contractor rescinded the contract as to all pipe not then delivered. It was held that he was within his rights in so doing, as time was of the essence of the manufacturer's contract.314 In a somewhat similar case, the plaintiff had con

Frost-Trigg Lumber Co. v. Forrester, 124 Mo. App. 304, 101 S. W. 164; Fratt v. Daniels-Jones Co., 47 Mont. 487, 133 Pac. 700; Douglas v. Hanbury, 56 Wash. 63, 104 Pac. 1110, 134 Am. St. Rep. 1096. Contra, Attorney General v. Purmort, 5 Paige (N. Y.) 620.

312 Cue v. Johnson, 73 Kan. 558, 85 Pac. 598.

3,13 Reese v. Westfield, 56 Wash. 415, 105 Pac. 837, 28 L. R. A. (N. S.) 956.

314 Camden Iron Works v. Fox (C. C.) 34 Fed. 200.

tracted with the sanitary district of the city of Chicago to excavate for the district a portion of the drainage canal, and the contract provided for a forfeiture by the district in case the plaintiff should be in default in the progress or character of the work, and it was held that the forfeiture would be enforced, since the inconvenience to the public resulting from a failure to have the canal excavated could not be measured in money.3 315 And even if the contract contains no provision making time of the essence, it may be made so, unless this is forbidden by statute,316 by a subsequent demand for performance fixing a definite date for it, and declaring an intention to rescind or declare a forfeiture on failure at that time. In a case in New York, a letter from the vendor of real property to the vendee, written after the time fixed for closing the title, to the effect that he must make an additional payment, otherwise the vendor would offer the property for sale, was held insufficient to constitute notice of the time and place of closing the title, so as to make time of the essence and put the vendee in default, but only because it fixed no definite time either for closing the title or for paying the additional sum.817

Where the question concerns the payment of the last installment of the purchase price of realty, as we have already stated, it is generally held that the vendor should put the vendee in default by the tender of a deed and a demand for payment. And if the vendor is then dead, it is said that a deed should be made and tendered by his widow and heirs, and if payment is not made, the heirs may declare a forfeiture.318

It is said that in mining contracts, involving the sale or lease of mines or oil or gas territory, time is always more or less of the essence of the contract. Thus, a contract to convey mining claims on the payment of part of the price

315 Harley v. Sanitary District of Chicago, 226 Ill. 213, 80 N. E. 771.

316 See, for instance, Rev. Codes Mont. § 5047, providing that time shall not be of the essence of a contract unless expressly so provided. See Fratt v. Daniels-Jones Co., 47 Mont. 487, 133 Pac. 700.

317 Foland v. Italian Savings Bank, 123 App. Div. 598, 108 N. Y. Supp. 57. And see Auxier v. Taylor, 102 Iowa, 673, 72 N. W. 291. 318 Peck v. Brighton Co., 69 Ill. 200.

in cash, and the balance in installments on two specified dates, makes time of the essence, and the failure of the purchaser to pay the balance due on the dates fixed relieves the owner of any obligation to convey.319 So, a petition alleging that the defendant contracted to complete an oil well within one year, and that at the time of beginning the suit, four years after the making of the contract, he had made no preparations for commencing the well, sets forth a cause of action for rescission of the contract.320

§ 217. Same; Failure to Deliver or Perform at Time Stipulated. Some of the cases show a disposition to hold that time must be considered as of the essence of the contract whenever the instrument itself fixes an exact date for the completion of the work, the delivery of the article, or the payment of the consideration, so that, on failure of punctual performance by one party, the other will be released from the obligation of the contract.321 This rule has been applied, for instance, in the case of building contracts. Where such a contract provides that materials shall be furnished and labor performed for a gross sum, and the contract completed by a specified day, the owner may insist on a strict performance, and put an end to the contract for failure to complete by the day appointed; and though the contract provides that, on the contractor's default, the owner may terminate the contract and enter and complete the work, at the contractor's expense, this provision will not preclude the owner from cancelling the contract for a substantial failure of the contractor to perform.322 So also it is said that, with merchants, the time of shipment, when particularly provided for in the contract, is a warranty or a condition precedent, upon the breach of which the ag

319 Harper v. Independence Development Co., 13 Ariz. 176, 108 Pac. 701.

320 Murray v. Barnhart, 117 La. 1023, 42 South. 489.

321 Stewart v. Allen (C. C.) 47 Fed. 399; Richard Deeves & Son v. Manhattan Life Ins. Co., 195 N. Y. 324, 88 N. E. 395; Kallis v. Lissberger, 39 Misc. Rep. 773, 81 N. Y. Supp. 332; Miller v. Sullivan, 14 Tex. Civ. App. 112, 33 S. W. 695, 35 S. W. 1084, 37 S. W. 778. 322 Fraenkel v. Friedmann, 199 N. Y. 351, 92 N. E. 666; General Supply & Construction Co. v. Goelet, 149 App. Div. 80, 133 N. Y. Supp. 978; Hay v. Bush, 110 La. 575, 34 South. 692.

But

grieved party may terminate the entire contract.323 the general rule is that, although the agreement may specify a day for performance or payment, yet if it is not expressly declared to be of the essence of the contract, or is not consistently so treated by the parties, mere delay or failure to pay or perform on the appointed day will not be sufficient ground for the rescission of the contract.324 Thus, a vendee in a contract for the sale of real estate will not be entitled to rescind the contract for failure of the vendor to deposit a deed in escrow within the time stipulated in the agreement of sale, unless the stipulation to do so was made a condition precedent on which the obligation to purchase and pay the remainder of the price depended.325 It is true that courts of equity do not encourage laches or slothfulness; but on the other hand, equity is not fond of taking advantage of forfeitures arising merely from a lapse of the time specified; on the contrary, it is the constant course to relieve against such forfeitures where adequate compensation can be made.326 Hence, for example, a vendor of land who has received a large part of the purchase money should not be permitted to rescind the contract and recover the land, if the purchaser is ready, able, and willing to pay the balance due, no matter how long he has been in default,327 nor in any case where the evidence shows that time has not

323 Clauss Shear Co. v. Alabama Barber Supply Co., 1 Ala. App. 664, 56 South. 49; Heidelbaugh v. Cranston, 4 Pennewill (Del.) 464, 56 Atl. 367.

$24 Moore v. Beiseker, 147 Fed. 367, 77 C. C. A. 545; McAllisterComan Co. v. Matthews, 167 Ala. 361, 52 South. 416, 140 Am. St. Rep. 43; American Type-Founders' Co. v. Packer, 130 Cal. 459, 62 Pac. 744; Burkhalter v. Roach, 142 Ga. 344, 82 S. E. 1059; Clark v. Lyons, 25 Ill. 105; Reid, Murdoch & Co. v. Somerset Canning Co., 182 Ill. App. 112; Linscott v. Buck, 33 Me. 530; McTague v. Sea Isle City Lot & Building Ass'n, 57 N. J. Law, 427, 31 Atl. 727; Field v. Holbrook, 14 How. Prac. (N. Y.) 103; Gale v. Nixon, 6 Cow. (N. Y.) 445; Scott v. Smith, 58 Or. 591, 115 Pac. 969; Hild v. Linne, 45 Tex. 476; Lochausen v. Laughter, 4 Tex. Civ. App. 291, 23 S. W. 513; Selden v. Camp, 95 Va. 527, 28 S. E. 877; Campbell v. Alsop's Adm'r, 116 Va. 39, 81 S. E. 31.

325 Boulware v. Crohn, 122 Mo. App. 571, 99 S. W. 796.

826 Nelson v. Carrington, 4 Munf. (Va.) 332, 6 Am. Dec. 519; Abbott v. L'Hommedieu, 10 W. Va. 677.

327 Wiseman v. Cottingham (Tex. Civ. App.) 141 S. W. 817.