tracts in a court of equity, receive in all courts the same construction and effect as they would formerly have received in equity. (f) In other words, the doctrines and rules of equity as to the effect of of lapse of time are now applicable to and govern every contract that falls within the jurisdiction of any of the courts, superior or inferior, (g) of this country. These doctrines and rules then we now proceed to consider. § 1041. It is proposed to discuss the subject in hand under the following heads, viz.:— (1) Cases where time was originally of the essence of the contract: (2) Cases where time, though not originally of the essence of the contract, has been engrafted into its essence by subsequent notice: (3) Cases where the delay has been so great as to constitute laches disentitling the party to the aid of the court, and evidencing an abandonment of the contract irrespectively of any particular stipulation as to time: (4) Cases where time does not run : (5) Cases where the objection on the ground of lapse of time is waived. 1. Time originally of the essence of the contract. § 1045. Time is originally of the essence of the contract in the view of the court of equity, whenever it appears to have been part of the real intention of the parties that it should be so, and not to have been inserted as a merely formal part of the contract.(h)' As this intention may either be separately expressed, or may be implied from the nature or structure of the contract, it follows that time may be originally of the essence of a contract, as to any one or (f) Jud. Act., 1873, s. 25 (7); Jud. Act, 1875, s. 10. Cf. Noble v. Edwards, 5 Ch. D., 378. (g) See Jud. Act, 1873, s. 91. (h) Hipwell v. Knight, 1 Y. & C. Ex., 401. Therefore the time of payment, in a contract for the sale of lands, may be made of the essence of the contract, and on a default, without excuse, or any acquaintance or waiver on the part of the vendor, equity will not aid the vendee. Reed v. Chambers, 6 Gill & J., 490. See Wells v. Smith, 2 Edw. Ch., 78; S. C., 7 Paige, 22; Smith v. Brown, 5 Gilm., 305. So where a certain act has been clearly stipulated to be done within a given time, as, for example, giving security, a party will not be relieved against his failure to perform the act at the time specified. Doar v. Gibbes, 1 Bailey's Ch., 371. more of its terms, either by virtue of an express condition in the contract itself making it so, or by reason of its being implied. It will be convenient to consider the cases separately; premising, however, that the point that time is of the essence of the contract is one which should be made by the party insisting on it without delay.(¿)' (i) Monro v. Taylor, 8 Ha., 51, 62. 1 Time when a contract is complete.] The time when the negotiation culminates in an agreement is often of importance. When the answer containing the acceptance of a distinct proposition. is dispatched by mail or messenger, if due diligence is used, and no intimation that the offer has been withdrawn has been received, completes the contract. Adams v. Lindsell, 1 B. & A., 681; Mactier v. Frith, 6 Wend., 103; Levy v. Coke, 4 Ga., 1; Brisbane v. Boyd, 4 Paige's Ch., 17; Averil v. Hedge, 12 Conn., 426; Hamilton v. Lyeswing Ins. Co.. 5 Pa. St., 339; Abbott v. Shepard, 84 N. H., 14; Stockton v. Stockton, 32 Md, 136; Chicago R. R. Co. v. Done, 43 N. Y., 260; Potts v. Whitehead, 20 N. J. Eq., 55; Kent's Com. (9th ed.), 640. The agreement is held to date from the posting, and not from the receipt of the letter. Potter v. Saunders, 6 Hare, 1; Brisbane v. Boyd, 4 Paige's Ch., 17; Vassar v. Camp, 11 N. Y., 441; Clark v. Dales, 20 Barb., 42; Falls v. Garther, 9 Porter, 605; Chiles v. Nelson, 7 Dana, 281; Levy v. Coke, 4 Ga., 1; Averil v. Hedge, 12 Conn., 424; Beckwith v. Cheever, 21 N. H., 41; Bryant v. Boone, 55 Ga., 438, contra, McCulloch v. Eagle Ins. Co., 1 Pick., 278; Hayer v. Middlesex Ins. Co., 10 Pick, 326; Gillespie v. Edmonston, 11 Humph., 553. When time made a distinct feature of the contract.] It makes no difference what the nature of the subject matter is, the time for the performance of the agreement will be regarded, when the time of performance appears to have been made a distinct feature of the transaction. Ganetson v. Vanloon, 3 Iowa, 128. Want of mutuality, time" of the essence."] Where there is a want of mutuality in the obligations arising from the transaction, in equity as well as at law, time is of the essence. Manghlin v. Perry, 35 Md., 352; Magoffin v. Holt, 1 Duvall, 95. May stipulate that time shall be of the essence.] Baron Alderson said in Hipwell v. Knight, 1 Y. & C., 415: "I do not see therefore why, if the parties choose, even arbitrarily, to stipulate, provided both of them intend to do so, for a particular thing to be done at a particular time, such a stipulation should not be carried literally into effect in a court of equity. That is the real contract. The parties had a right to make it. Why, then, should a court of equity interfere, to make a new contract which the parties have not made?" See, also, Stow v. Russell, 36 Ill., 18; Benedict v. Lynch. 1 John.'s Ch., 370; Kemp v. Humphreys, 13 Ill., 573; Prince v. Griffin, 27 id., 514; Potter v. Tuttle, 22 Conn., 512; Baldwin v. Vanvorst, 10 N. J. Eq., 577; Earl v. Halsey, 1 McCarter (N. J. Ch.), 332; Grigg v. Landis, 21 N. J. Eq., 494; Fessler's App., 75 Pa. St., 483. Zabriskie, Ch., said in Bullock v. Adams, 20 N. J. Eq., 367: "A court of equity has no more right to disregard an express stipulation that time shall be of the essence of the contract, than it has to give a year, or ten years, or ninety-nine years, for the payment of the whole or of one half of the purchase money stipulated for in cash, if it should appear that it is difficult or impossible for the purchaser to pay at the time agreed upon." Stipulations as to time; examples. The following cases will show the effect of stipulations as to time: Jones v. Noble, 3 Bush (Ky.), 694; Mason v. Payne, 47 Mo., 517; Mitchell v. Wilson, 4 Edm. Ch., 697; Heckord v. Sayre, 34 Ill., 142: Shuffleton v. Jenkins, 1 Morris (Iowa), 427; Reed v. Breeden, 61 Pa. St., 460; McClure v. King, 15 La. An., 220; Gale v. Archer, 42 Barb., 320; Troy v. Clarke, 30 Cal., 419. Walworth, Ch., said in Smith v. Wells, 7 Paige's Ch., 22; S. C.. 2 Edm. Ch., 78: “Although, in theory, the interest is supposed to be a fair equivalent for the non-payment of money at the time agreed upon, we $1046. The Court of Chancery seems at one time to have gone so far in its disregard of time as to consider that it was of no consequence in equity :(j) and accordingly Lord Thurlow(k) seems to have maintained that no expression (j) Gibson v. Patterson, 1 Atk, 12, which (k) Gregson v. Riddle, cited by Romilly has been thought an erroneous report. See arg. 7 Ves., 268. Lloyd v. Collett, 4 Bro. C. C., 469 n. (3). all know that, in point of fact, the persons to whom it is due, frequently sustain great losses in consequence of the disappointment which the legal rate of interest cannot compensate. On the other hand, it frequently happens that the perfecting of the title, and the delivery of the possession of the premises at the time contemplated by the purchaser, is of essential benefit to him, which cannot be compensated by damages which are ascertainable by the ordinary rules of computing damages. It would, therefore, not only be unreasonable, but entirely unjust, for any court to hold that parties, in making executory contracts for the purchase or sale of real estate, should not be permitted to make the time of performance an essential and binding part of the contract in equity, as well as at law, where, as in this case, the other party was fully apprised of the intention to insist upon a strict performance at the day. Here there was no such impossibility as might not have been foreseen and provided against by proper care and vigilance. Under such circumstances, if the property had very much increased in value after the making of the original contract, the defendant is fairly entitled to the benefit thereof under the agree ment by which the complainant contracted to relinquish all claims upon the property, either at law or in equity, if he did not comply with the terms of the agreement at the day. And as there is nothing inequitable or unconscientious in her insisting upon this part of the contract, I think the vice-chancellor was right in not making a new contract for her, contrary to the understanding of both parties when they entered into this agreement." Land was sold under a written contract, which contained the following covenant: In the event of failure to comply with the terms hereof by the party of the second part, the party of the first part shall be released from all obligations in law or equity to convey said property, and said party of the second part shall forfeit all right thereto." The vendee failed to make his payments without excuse, and a court ef equity held that he could not be relieved from the consequences of his default. Rhodes, J., said: "Courts will not inquire into the motive, or the sufficiency of the motive, that induced the parties to contract that time should be essential in the performance of any of the agreements contained in the contract of purchase. But if it appears that the parties have thus contracted, courts of equity will not disregard the contract in order to give effect to some vague surmise that all the vendor intended to secure by the contract was the payment of the purchase money, with interest at some indefinite time." Grey v. Tubbs, 43 Cal., 359. Time was held to be of the essence of the contract in the following cases: "In case of the failure of the said S. to pay the aforesaid sums of money at the dates aforesaid, or any part thereof, to the said L., his heirs or assigns, then the said S. shall forfeit to the said L. the sums already paid, and no deed shall pass for said land. Held, that time was of the essence of such a contract. Snider v. Lehnherr, 5 Oregon, 385; see, also, Westerman v. Means, 12 Pa. St., 97. How time shall be reckoned.] Where the contract bore an impossible datee. g.. February 30, the time was held to be reckoned from its delivery. Styles v. Wardle, 4 B. & C., 908. To say time is regarded in this court, as at law, is quite impossible.] This is the language of Lord Eldon in Seton v Slade, 7 Ves., 265. Stipulations having reference to time merely, are construed liberally by courts of equity, unless it is distinctly made to appear that it was the design of the parties to make time of the essence." Brunfield v. Palmer, 7 Blackf., 227; Mathews v. Gillis, 1 Iowa, Hoffman v. Humner, 7 N. J. Eq., 263; Kirchwal v. Swope, 6 Monr., ; Ewing v. Course, 6 Ind., 312; Keller v. Fisher, 7 id., 718; Jones in the contract could make time of the original essence of it. Lord Kenyon, M. R., however, maintained the contrary(7) Lord Thurlow's doctrine was doubted by Lord Eldon :(m) and accordingly express stipulations rendering time of the essence have repeatedly been maintained as valid and binding in equity, (n) in respect, for instance, of covenants for the renewal of leases, (o) and stipulation as to the time for payment of the deposit(p) or the balance of the purchase-money.(q)' (1) Mackreth v. Marlar, 1 Cax, 259 (m) In Seton v. Slade, 7 Ves, 270. () Hudson v. Bartram 3 Mad., 440; Lloyd v. Rippingale, cited 1 Y. & C. Ex, 410. (0) Baynham v. Guy's Hospital, 3 Ves., 295. (p) Honeyman v. Marryat 21 Beav, 14, 24. (9) Barclay v. Messenger, 22 W. R., 522; 43 L. J. Ch., 449. v. Robins, 29 Me., 351; Wolton v. Wilson, 30 Miss., 576; Younger v. Welch, 22 Tex., 417; Runnels v. Jackson, 1 How. (Miss.), 385; White v. Butcher, 6 Jones Eq., 231; Smote v. Rea, 19 Md., 398; Hannah v. Ratekin, 43 Ill., 462; Miller v. Miller, 25 N. J. Eq., 354; Converse v. Blumrich, 14 Mich., 109. Stipulation as to time inserted as a penalty merely.] Where there is a stipulation that a party shall forfeit his rights under the contract in case of default, and it is clearly shown that such stipulation was inserted as a penalty merely, to induce more prompt performance of the contract, and where the party in default has given a reasonable excuse for the delay, and has acted throughout in good faith, and the other party has sustained no damage by the delay, specific performance will be decreed. Quinn v. Roath, 37 Conn., 16; see, also, Searlett v. Stein, 40 Md., 512; Steele v. Branch, 40 Cal., 3; Moote v. Scrinen, 38 Mich., 500. Time within which a contract is to be performed.] Formerly equity paid little attention to the mere want of punctuality, and carried the doctrine of relief to an extravagant length. Judge Story says, in Story's Eq. Juris., § 780: "Equity went beyond the true limits to which every jurisdiction should be confined, as it amounted to a substitution, pro tanto, of what the parties had not contracted for. But the tendency of the modern decisions is to bring the doctrine within such moderate bounds as seem clearly indicated by the principles of equity, and by a reasonable regard to the common accidents, mistakes, infirmities and inequalities belonging to all human transactions." See, also, Drew v. Hanson, 6 Ves., 678; Halsey v. Grant, 13 Ves., 76; Linton v. Potts, 5 Blackf., 396; Bowyer v. Bright, 13 Price, 702; Barnard v. Lee, 97 Mass., 92. Time, how regarded at law?] At law, the plaintiff must show performance within a reasonable time; and in cases where the time is fixed, he must show performance within such time. Berry v. Young, 2 Esp., 640, n; McCulloch v. Dawson, 1 Cart. (Ind.), 413; Stowell v. Robinson, 3 Bing. (N. C.), 928; Wilde v. Fort, 4 Taunt., 334; Alexander v. Godwin, 1 Bing. (N. C.), 671; O'Kane v. Kiser, 25 Ind., 168. Time, how regarded in equity?] Equity holds time to be prima facie, nonessential. Seton v. Slade, 7 Ves., 273; Radcliffe v. Warrington, 12 Ves., 326; Parkin v. Thorold, 16 Beav., 59; Pincke v. Curtis, 4 Bro. C. C., 329. In Peters v. Delaplaine, 49 N. Y., 367, Church, C. J., said: "The time within which actions may be brought for specific performance of contracts, has not been extended by implication by the statutes prescribing a time within which the action must. in all cases, be brought. The question still remains, and must be decided in each action, although brought within the statutory limit as to time, whether, under the peculiar circumstances, equity and good conscience require that the pract shall be specifically perforined, or whether the party shall be left to h medy at law for the non-performance." See, also, King v. Hamilton, 4 Pet. (U. S), 311. It is clearly the re e that equity will not disregard the manifest intention of the parties. It is only required that they shall make time essential to induce § 1047. In order to render time thus essential, it must be clearly and expressly stipulated, and must also have been really contemplated and intended by the parties that it shall be so it is not enough that a time is merely mentioned during which or before which something shall be done. § 1048. Therefore in a case where the contract, dated the 23d of October, was to grant a new lease "upon condition" of the intending lessee paying on or before the end of the month a premium of 1,000 guineas, Lord Eldon nevertheless refused (on an interlocutory application) to treat the period limited by the contract as essential, considering that, upon the facts of the case, the amount of the premium was really the only thing contemplated by the parties, and that there was nothing to show that payment at a particular day was the object. (r) So, again, where a day was specified for the delivery of the abstract, it was held non-essential, although the purchaser upon its expiration immediately refused to proceed :(s) and in Parkin v. Thorold, (t) where a day had been specified for the completion of the contract, Lord Romilly, M. R., held it to be non-essential, though in so doing he differed from the previous observations of Lord Cranworth, `made (when V. C.) in the same case at an earlier stage. (u)' (r) Hearne v. Tenant, 13 Ves., 287. (8) Roberts v. Berry, 16 Beav., 31, affirmed 3 De G. M. & G., 284. Consider Venn V. Cattell, 27 L T., 469. (t) 16 Beav., 50; but see the judgment of Jessel, M. R., in Barclay v. Messenger, 22 (u) Parkin v. Thorold, 2 Sim. N. S., 1. Distinguish Barclay v. Messenger, 22 W. R., 522; 43 L. J. Ch., 449. the court to so consider it. Scott v. Fields, 7 Ham, 90 (2d pt.); Benedict v. Lynch, 1 John.'s Ch., 370; Doar v. Gibbes, 1 Bailey's Ch., 371; Wells v. Smith, 7 Paige, 22 A most powerful argument in favor of the law, as it now stands, was made by Lord Loughborough in Lloyd v. Collett, 4 Bro. C. C., 469. "There is a difficulty," said his honor, "to comprehend how the essentials of a contract should be different in equity and at law. It is one thing to say the time is so essential that, in no case in which the day has been by any means suffered to elapse, the court would relieve against it and decree performance. The conduct of the parties, inevitable accident, etc., might induce the court to relieve. But it is a different thing to say the appointment of a day is to have no effect at all; and that it is not in the power of the parties to contract, that if the agreement is not executed at a particular time, they shall be at liberty to rescind it." "I want a case to prove that where nothing has been done by the parties, this court will hold, in a contract of buying and selling, the rule that the time is not an essential part of the contract. Here no step had been taken from the day of the sale for six months after the expiration of the time at which the contract was to be completed. If a given default will not do, what length of time will do? An equity arising out of one's own neglect! It is a singular head of equity!" 1 Wells v. Wells, 3 Ired.'s Ch., 596; Runnels v. Jackson, 1 How. (Miss.), 368; Attorney-General v. Purmont, 5 Paige, 620. But in Benedict v. Lynch, 1 |