Delage v. Hazzard , 16 Ala. 196 ( 1849 )

DARGAN, J.

If we are to consider the failure of the complainants to deliver to the Register, the plates and maps within the time prescribed by the decree, in the nature of a default in not observing the rules of a court of equity, or even as not observing an order made in the progress of a cause, it is very certain that the chancellor may, in the exercise of his discretion, relieve them from the legal consequences of such default. Beekman v. Peck, 3 Johns. Chan. Rep. 414; Wooster, et al. v. Woodhull, 1 Johns. Chan. Rep. 538; and it is said in the, case of Ashe v. Moore, 2 Murphy, that every order made in the progress of a cause may be rescinded or modified upon a proper case being made out.

But we think the decree of the chancellor, prescribing the time, within which the maps and plates were to be delivered to the the Register by the complainants, and the money to be paid by the defendant, must be considered in the nature of a contract of which the time of its performance is a material part. In the opinion of the chancellor, the complainants were not entitled to relief, but as both parties expressed a willingness still to comply with the contract, &c. ordered the complainants to deliver the plates and maps to the Register of the court, within six months from the dale thereof, and if they made default the bill to be dismissed; and the defendant, within the same time, to pay the money into court, and if he made default, a decree of foreclosure to be rendered. Under this decree, the entire equity of the complainants depended upon their compliance with the order of the court. If Ihey did not perform within the time prescribed, they wen xuithout equity,. If, therefore, the rights of the complainants depend on their performing within a specified time, a contract, which on their failure to perform, was to be void, and they made default, they were without remedy, unless they could show some legal excuse for not performing it within the prescribed time. This a court of equity will permit them to do. For although time may be made a material part of the contract, and a failure to perform will deprive the party in default of all equitable relief, if that default is the result of mere neglect, yet it is clear, that he may show that his failure to perform, was not the result of negligence* but resulted from causes that would render it inequitable to deprive him of relief. Benedict v. Lynch, 1 Johns. Ch. Rep. 370. In the case of Langworth v. Taylor, 1 McLean, 395, the court said, it is the province of chancery to relieve against penalties and forfeitures, but it would be strange, if relief could ■be extended against the positive stipulations and understanding of the parties; this would not be to give effect to the contract, but to make a new one between the parties, contrary to the terms they had adopted. At law time is always an essential part of the contract, but a court of chancery will consider it in connection with all the circumstances of the case, and if the party can show that he has been prevented by inevitable accident, or from any justifiable excuse from performing Ms part, at the stipulated time, and the other party has suffered no injury from the delay, the court will not withhold its aid. And in the case of Hays v. Hall, 4 Porter, 374, this court said,, that time may be made a material part of a contract, and if the complainant has failed to perform his part, at the appointed time, without excuse on his part, or the assent of the other party, chancery will not relieve him. These authorities clearly show that equity will relieve a party from the consequences' of a failure, on his part to comply with the contract at the appointed time, if he can show that this failure resulted from any cause, that will afford a sufficient legal excuse, and the other party has not been injured by the delay. If his default has resulted from negligence merely, and has not been waived by the opposite party, a court of equity ought not and will not afford relief to the delinquent party. But if the default occurs without neglect, and from causes, that a court of equity will consider as a sufficient excuse, relief ought to be granted. Testing then, ihe decree of the chancellor by those rules that govern contracts, in which time is a material part, and the question is, did the complainant show a sufficient excuse for not delivering the plates and maps to the Register, within the time fixed by the decree ? The complainants reside in Philadelphia, and the maps and plates were shipped by them to Mobile, and were received by Bunnell, Iheir agent, for the purpose of being delivered to McRae, the Register, within the six months. McRae, during the six months, remained the greater part of his time at Pascagoula, but his office was regularly attended by a deputy. Before, however, the six months had expired, Bunnell seeing the Register in the street, informed him that he had received the maps and plates for him. The Register replied, that he was then on his way to Pascagoula, and requested Bunnell to let them remain in his store until he wanted them. The plates and maps were deposited in the office of the Register, in about six weeks after the six months had expired, within which the complainants were ordered to deliver them to him. If rve consider this as a non-compliance with the terms of the decree, the question arises why did Bunnell, the agent of the complainant, fail to comply ? May it not be fairly attributed to the Register, and not his, Bunnell’s neglect? Had the Register directed him where to deposite them, is it but reasonable to suppose he Avould have complied with his directions, as under his instructions, or at his request, he permitted them to remain in his store. The complainants Avere ready and willing to deliver them to the Register, before the six months expired, but under the instructions, or at the request of the Register, did not deliver them, until about six Aveeks after the time expired. We cannot attribute this failure to deliver to the negligence, either of the complainants or of their agent, but to the request of the Register, AAdio was to receive them, and it is not pretended that any injury has resulted from the delay to the defendant, This, in our opinion, is a sufficient excuse for not delivering the plates and maps to the Register, within the prescribed time, and the decree of the foreclosure, must be affirmed.