Defendants, other than Payne, held title to a tract of forty-five acres in Easthampton. March 1, 1926, they agreed in writing to convey it to him. He assigned the contract to plaintiffs but retained an interest in it. The date for closing title was designated in the contract as May 14 but written stipulations were exchanged whereby it was adjourned to May 21 and again to May 28. Plaintiffs were then able and willing to perform but the vendors were unable to pass a marketable title. Defendants requested but were refused another adjournment to June 11. Before that day, they succeeded in clearing the title and they so informed plaintiffs and have since been able and willing to perform. Plaintiffs refused to take title after May 28 and sued to recover the down payment. The answer demanded specific performance. The Special Term found the facts as above stated and also found that on May 21 plaintiffs had notified defendants that no other adjournment would be granted after May 28. It found as additional facts that the contract did not provide that the time of closing title was of the essence and that neither of the stipulations for adjournment provided that time was of the essence. No finding or conclusion was made by the trial court in relation to any issue whether time was or was not of the essence, but judgment was given for plaintiffs. The Appellate Division reversed, as against the weight of evidence, the finding that plaintiffs on May 21 notified defendants that May 28 would be the last adjournment, but it affirmed those concerning the absence in the contract and in the stipulations of any provisions making time of the essence. It made new findings to the effect that no notice was ever given which was sufficient to make time of the essence and that the request for adjournment to June 11 was reasonable and was unreasonably refused. It drew conclusions of law holding that defendants were entitled to a reasonable time in which to remedy defects in title and to prove marketability, dismissed the complaint *Page 228 and decreed specific performance as demanded in the answer. Plaintiffs ask for a reversal because, as they argue, the nature and object of the contract and the circumstances surrounding its execution establish that time was intended to be of its essence and that the trial court's finding that plaintiffs had notified defendants on May 21 concerning a refusal to grant an adjournment beyond May 28 is in accord with the weight of evidence and should not have been disturbed. They argue, also, apparently as an extremely incidental and subordinate point, that the part of the judgment granting specific performance cannot be sustained.
We are asked, in effect, to draw an inference which in its nature must necessarily constitute one of fact, that, from all the circumstances, the parties originally intended time to be of the essence or, in any event, that, by notice subsequently given by one and accepted by the other, they later indicated such an intention. The complaint does not allege time as an essential element of the contract nor does either of the stipulations adjourning the date of closing suggest such an idea. No finding on this subject has been made either at Special Term or the Appellate Division and this court is without power to make an original one. Probably both parties sought to eliminate unnecessary delay. In nearly all instances after contracts have been signed, buyer and seller act to their mutual advantage when they refrain from postponement of performance. Generally neither will gain by deferring the transfer of title. All that is found by the Appellate Division to have been said and done by these parties is consistent with the ordinary procedure by which land is bought and sold. No finding before us removes this contract outside the operation of the rule that the mere designation of a particular date upon which a thing is to be done does not result in making that date the essence of the contract. (Day v.Hunt,
A majority of the judges of the court are of the opinion that under our rulings in Crowley v. Lewis (
The judgment should be modified in accordance with this opinion and as modified affirmed, with costs to respondents.
CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG and HUBBS, JJ., concur.
Judgment accordingly.