§ 854. Time is of the essence even in equity if the property is of speculative or fluctuating value. Time may become of the essence of a contract in equity not only by the express terms of the parties but from the very nature of the property. Mineral property requires the parties interested in it to be vigilant and active in asserting their rights.96 Other property of fluctuating value is subject to the same rule.97 So the general character of a contract may indicate of the year. A majority of the court held that the vendee had no right to rescind until the end of the year and was entitled to a reasonable time thereafter and that twelve days' delay was not unreasonable. See comment on the decision in 14 Mich. L. Rev. 420. 96 Huxham v. Llewellyn, 28 L. T. Rep. 577; Waterman v. Banks, 144 U. S. 394, 36 L. Ed. 479, 12 S. C. Rep. 646; Olympia Min. &c. Co. v. Kerns, 24 Idaho, 481, 135 Pac. 255, aff'd 236 U. S. 211, 35 Sup. Ct. 415, 59 L. Ed. 542; Skookum Oil Co. v. Thomas, 162 Cal. 539, 123 Pac. 363. "Lewis v. Lechmere, 10 Mod. 503 (South Sea Stock); Seaton v. Mapp, 2 Coll. 556 (public house as a going concern); Nokes v. Kilmorey, 1 De G. & Sm. 444 (land desired for immediate building); Day v. Luhke, 5 Eq. 336 (public house); Claydon v. Green, L. R. 3 C. P. 511 (public house); Cowles v. Gale, 7 Ch. 12 (public house); Doloret v. Rothschild, 1 S. & S. 590 (government stock); Coslake v. Till, 1 Russ. 376 (public house); Payne v. Banner, 15 L. J. Ch. 227 (patent-payment required to protect it); Glasbrook v. Richardson, 23 W. R. 51 (trade property); Patrick v. Milner, 2 C. P. D. 342, 348 (reversionary interest in stock); Weston v. Savage, 10 Ch. D. 736, 741 (public house); Myers v. League, 62 Fed. R. 654, 10 C. C. A. 571 (lands fluctuating greatly in value); Kentucky Distilleries, etc., Co. v. Warwick Co., 109 Fed. 280, 48 C. C. A. 363 (property fluctuating in value); Telegraphone Corp. v. Canadian Telegraphone Co., 103 Me. 444, 69 Atl. 767 (patent); Goldsmith v. Guild, 10 Allen, 239 (land in war time, when gold fluctuated greatly); Hawley v. Jelly, 25 Mich. 94 (property likely to advance greatly because of expected public improvement); King v. Ruckman, 20 N. J. Eq. 316 (fluctuating property); Howell's Estate, 224 Pa. 415, 420, 73 Atl. 445 (bonds of fluctuating value). In Kentucky Distilleries, etc., Co. v. Warwick Co., 109 Fed. 280, 48 C. C. A. 363, there was in suit a contract for the sale of distillery property and a large quantity of whiskey, the latter constituting two-thirds in value of the entire property sold. The contract provided that a conveyance of the realty should be placed in the hands of a trust company, to be delivered to the purchaser on payment "of the consideration herein set forth for properties to be delivered, provided the said consideration is paid to said trust company on or before March 10, 1899." It was held, that in view of the nature of the greater part of the property, which was a marketable commodity, and at the time fluctuating in value, such provision must be construed as making time of the essence of the contract, and the seller could not be compelled to perform specifically where the purchase money was not paid to the trust company until April that time is of such vital importance as to be of the essence even in proceedings in equity.98 § 855. Statutory adoption of the Equity Rule. By the Judicature Act of 1873 in England 99 it is provided in effect that stipulations in contracts as to time which would not before the passing of the Act have been deemed to be of the essence of such contracts in a Court of Equity should receive in all courts the same construction as they would previously have received in equity. In the English Sale of Goods Act of 1893,2 it is provided: "Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale. Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract." 3 In a few American States there are statutory provisions to the effect that unless so provided in terms, time shall not be considered of the essence, and in States where legal and equitable procedure is fused it would seem that general statutory provisions might authorize the application of equitable principles. It seems clear, however, that courts will not give such statutes their literal effect of permitting the same liberal excuses for delay in mercantile contracts which equity has permitted in contracts for the sale of land. It seems hard to deny, on the other hand, that 14, at which time the whiskey had increased largely in market value. 98 Meier Dental Mfg. Co. v. Smith, 237 Fed. 563, 150 C. C. A. 445. 99 Sec. 25. 1 Fry, L. J., in Howe v. Smith, 27 Ch. D. 89, 103, said of this provision: "The effect of this clause is, in my opinion, that the purchaser seeking damages is no longer obliged to prove his willingness and readiness to complete on the day named, but may still recover if he can prove such readiness and willingness within a reasonable time after the stipulated day." 2 Sec. 10 (1). This provision is not reproduced in the American Statute. E. g., Oklahoma, Rev. L. (1910), § 968; North Dakota, Comp. L., Sec. 5917; So. Dakota (1913), Sec. 1267. See Wiebener v. Peoples, 44 Okl. 32, 142 Pac. 1036, Ann. Cas. 196 E. 748; Sunshine Cloak & Suit Co. v. Roquette, 30 N. Dak. 143, 152 N. W. 359, L. R. A. 1916 E. 932; Western Town Site Co. v. Lamro Town Site Co., 31 S. Dak. 47, 139 N. W. 777; Phillis v. Gross, 32 S. Dak. 438, 143 N. W. 373. 5 In Reuter v. Sala, 4 C. P. D. 239, 249, Cotton, L. J., said when the provision of the English Judicature Act was urged upon him, that to apply the equitable rule in regard to land "to mercantile contracts would be dangerous and unreasonable." See also such statutes have some effect even upon mercantile contracts. There are intermediate degrees between the latitude allowed by courts of equity in dealing with contracts to buy and sell land and the strictness which would hold that the slightest breach by the plaintiff of a promise in regard to time is fatal, even though time is not stated to be vital and is not so in fact, and though strict performance is not made an express condition of the defendant's promise. Even without the aid of statutes the rule of the common law "has been largely modified at the present day by the rule in equity." § 856. Delay may be waived. Either at law or in equity a stipulation regarding time though otherwise of the essence, may be waived or the injured party may elect to continue the contract in spite of the breach,7 and the same consequences follow an attempt to prevent performance by evading the other party who is seeking to make a tender.8 But the principles here applicable are those generally governing the waiver of conditions and the discharge of obligations." Sunshine Cloak & Suit Co. v. Roquette, P. J. Carlin Const. Co. v. Guerini 7 Mound Mines Co. v. Hawthorne, 173 Fed. 882, 97 C. C. A. 394; Pitch Pine Lumber Co. v. Geo. E. Wood Lumber Co., 57 Fla. 140, 48 So. 993; Studdard v. Hawkins, 139 Ga. 743, 78 S. E. 116; Kimball v. Tooke, 70 Ill. 553; Bonney v. Blaisdell, 105 Me. 121, 73 Atl. 811; Kehlor Flour Mills Co. v. Linden, 230 Mass. 119, 119 N. E. 698; Paulman v. Cheney, 18 Neb. 392, 25 N. W. 495; Duffy v. O'Donovan, 46 N. Y. 223; Olsen v. Northern S. S. Co., 70 Wash. 493, 127 Pac. 112; Paton v. Payne, 35 Scot. L. Rep. 112 (H. L.). Ebert v. Arends, 190 Ill. 221, 60 N. E. 211. See also Schæffer v. Coldren, 237 Pa. 77, 85 Atl. 98. 9 In Globe Brewing Co. v. American Malting Co., 152 Ill. App. 194, 198, the court said: "Where time of performance is of the essence of the contract, a party who does any act inconsistent with the supposition that he continues to hold the other party to his part of the agreement will be taken to have waived it altogether. King v. Wilson, 6 Beav. 124; Baker v. The Bishop Hill Colony, 45 Ill. 264; and cases cited in 29 Am. & Eng. Ency. of Law, Vol. 29, p. 1104. When a specific time is fixed for the performance of a contract and is of the essence of the contract and it is not performed by that time, but the parties proceed with the performance of it after that time, the right to suddenly insist upon a forfeiture for failure to perform within the specified time will be deemed to have been § 857. Hour of performance. The early rule of the common law in regard to the hour of performance was thus stated by Baron Parke:10 "A party who is by contract to pay money, or to do another thing transitory, i. e.,-anywhere on a certain day, or on one of several days, has the whole of that day, or of all of the days, respectively, for performance. He must find the other at his peril,11 and within the time limited, if the other be within the four seas, 12 and must do all that without the concurrence of the other he can do, and at a convenient time, having regard to the nature of the act, before midnight. "Therefore, if he is to pay a sum of money, he must tender it a sufficient time before midnight for the party to whom the tender is made to receive and count; or if he is to deliver goods, he must tender them so as to allow sufficient time for examination and receipt. . . . But where the thing to be done is to be performed at a certain place on or before a certain day to another party to a contract, there the tender must be to the other party at that place;' and as the attendance of that party at that place is necessary to complete the act, the law fixes a particular part of the day for his presence, and 'it is enough if he be at the place at such a convenient time before sunset on the last day as that the act may be completed by daylight.' But this being a rule made only for the convenience of both parties, 'if it happen that both parties meet at the place at any other time of the last day, or upon any other day within the time limited, and a tender is made, the tender is good.'" 13 These rules though still sometimes quoted 14 must be accepted with waived and the time for performance will be deemed to have been extended for a reasonable time. King v. Radeke, 175 Ill. 72, 51 N. E. 698; Moline Malleable Iron Co. v. McDonald, 38 Ill. App. 589." See also infra, § 868. 10 Startup v. Macdonald, 6 M. & G. 593. 11 Citing Kidwelly v. Brand, [1551] Plowden, 69, 71. 12 Citing Shep. Touch. 136. 13 Citing 7 Bac. Abr. 529; "Tender," D.; Co. Litt. 202a, 211; 5 Co. Rep. 114; Cro. Eliz. 14. 14 In Hall v. Whittier, 10 R. I. 530, 534. The court said: "Where a contract is to be performed on a certain day and at a certain place, the legal time of performance is the last convenient hour of the day for transacting the business; usually, that is to say, such convenient time before sunset as that the act may be completed by daylight. This rule is established for the convenience of both parties, some qualification. One who is subject to a unilateral obligation maturing on a certain day may undoubtedly discharge that obligation at any reasonable hour of the day. What is a reasonable hour of the day is a question of fact largely dependent upon business custom; but generally where all that is required of the other party is to receive a payment or performance which can readily be accepted, it seems probable that any hour when the debtor could find the creditor would be reasonable for that purpose. In case of goods which were bulky or needed special care, an hour might be unreasonable, however, which would not be so for an ordinary payment of a small sum of money.15 Where the question is not merely one of tender but also of demand, reasonableness will depend on the justifiable expectation that the hour is reasonable for giving as well as receiving. By the custom of merchants in the case of negotiable paper it is the obligation of the party primarily liable to pay on presentment at any reasonable hour of the day of maturity. By this custom, therefore, if a note is presented to the maker at 9 o'clock in the morning and payment is not then made, it is dishonored. This custom is so far recognized by the law that after such a presentment notice of dishonor may be given immediately to parties secondarily liable.16 For the purpose of bringing suit, however, the custom that neither may be compelled, unnecessarily, to attend during the whole day. Earlier in the day, therefore, neither party can discharge himself in the absence of the other by being present and ready to perform; though, if both parties are earlier present, a tender and refusal then will be as effectual as at a later hour. Wade's Case, 5 Co. 114; Lancashire v. Killingworth, 12 Mod. 530; s. c. 1 Ld. Raym. 686; Hammond v. Ouden, 12 Mod. 421; Rutland v. Hodgson, 2 Str. 777; Tinckler v. Prentice, 4 Taunt. 549; Doe v. Paul, 3 C. & P. 613; Acocks v. Phillips, 5 H. & N. 183, and note; Savary v. Goe, 3 Wash. (C. C.) 140; Tiernan v. Napier, 5 Yerg. 410; Aldrich v. Albee, 1 Greenl. 120, 10 Am. Dec. 45. A tender, however, which is made after sunset, will be sufficient if the party to receive is present, but after sunset, the absence of either party is not a default. Startup v. Macdonald, 6 M. & G. 593; Sweet v. Harding, 19 Vt. 587." 15 Croninger v. Crocker, 62 N. Y. 151. The American Uniform Sales Act, Sec. 43 (4) (see infra, § 956) provides that demand or tender may be treated as ineffectual unless made at a reasonable hour, and that what is a reasonable hour is a question of fact. 16 Ex parte Moline, 19 Ves. 216; Clowes v. Chaldecott, 7 L. J. K. B. 147; Bussard v. Levering, 6 Wheat. 102, 5 L. Ed. 215; Lindenberger v. Beall, 6 Wheat. 104, 5 L. Ed. 216; Curry v. Bank of Mobile, 8 Port. 360; McFarland v. Pico, 8 Cal. 626; Farmers' Bank |