Jennings v. Bowman

March 6, 1917. The opinion of the Court was delivered by The appeal involves the construction of a written agreement between the parties litigant and especially of the following clause, to wit:

"The prices and considerations herein named are based upon actual acreage, and each of said parties shall have the right to survey the lands above referred to, and any excess or shortage in acreage over or under the acreage stated in the deeds to be paid for, or deducted, at the rates herein. Surveys under this contract are to be made within ninety days from the date hereof; otherwise the acreage stated is to stand."

Let the entire agreement be reported.

The agreement was made concurrently with the partition by cross-deeds of many parcels of land betwixt the parties, and which they held as tenants in common. It compassed other differences betwixt the parties than that suggested in the mooted clause. The surveys referred to and the basis of this action were not made within 90 days from the date of the agreement. On the ninetieth day the plaintiff requested an extension of the time to survey until May 1st, and the defendant dissented. The survey was begun in the field on the ninetieth day, and was completed some weeks thereafter. The plaintiff alleges that it turned out there were errors in the estimated actual acreage, against the plaintiff, one way and another, which amounted to nearly $2,000, and the plaintiff sued the defendant for that sum, and for what the complaint terms equality of partition.

The Court held that time was the essence of the contract, and the plaintiff was bound to have made the surveys within 90 days from the date of the contract, unless the defendant had waiver a strict performance of it. The issue of waiver has been dissipated by a verdict for the defendant, and no exception thereabout.

And while there are three exceptions to the charge of the Court, there is admittedly but one question, and that is: Shall the parties be held to abide the letter of the agreement?

It is a very old question whether time is of the essence of a contract, and the reason is, the application of the doctrine depends upon innumerable circumstances. The facts determine the application, and seem, therefore, to determine the law.

The question arises out of many classes of cases; in building contracts which provide for forfeitures, in contracts for the purchase and sale of lands, in insurance contracts, and others; and decisions in one class do not much help to elucidate causes arising in another class. Generally, in a Court of law the time in which a thing is to be done is as much a part of the contract as any other feature of it. But in equity a different rule prevails; time is held to be of the essence or not, according to all the circumstances of the case. Yet even there, time will be regarded as of the essence, if the contractors have made it so by the use of words so plain as to leave no room for a consideration of the justice of the case.

The appellant suggests in the argument that this is a cause in equity, but the record does not show that such a question was made below; the parties treated the case as one at law. But as we view the case that consideration is immaterial here. Suppose the instant agreement had provided that if the survey was not had in 90 days it should not be had thereafter, except by the consent of the parties indorsed on the agreement? There will be no two opinions about the effect of such a clause. The parties, having made so plain an agreement, would be held to it, without reference to the moralities of the case.

The case at bar is not altered. The parties agreed that "surveys under this contract are to be made within 90 days from the date thereof; otherwise the acreage stated is to stand." The seven words last quoted are those used by the contractors; they are susceptible of only one meaning; they closed the door to every negotiation after 90 days. The plaintiff feared that. He, on the ninetieth day, asked for an extention, and it was denied him. The defendant has used the sword, as he had the legal right to do. The plaintiff is a man of affairs, a trained lawyer, accustomed to the use of words in written instruments. There is no way of escape for him — in a Court.

The judgment below is affirmed.