Davis v. Stevens

| Iowa | Jun 15, 1856

Weight, C. J.

We do not think this decree can be sustained. The parties have by their agreement, made time of the essence of the contract. This it was entirely competent for them to do, and we have no right or power to make a different one for them. That time is of the essence, is not left to implication; but it is made so, by express stipulation. Under such a contract, parties must be held to strict compliance in time, to the same extent as they, are to any other essential part of the agreement. Young v. Daniels, 2 Iowa, 156; Taylor v. Longworth, 14 Pet. 112. As if conscious of this rule, plaintiff places his claim to a specific performance, for the most part, upon the alleged agreement of defendant to extend the time of payment. Without taking time to consider the objection made by defendant, that this agreement is void, because it was not in writing, it is sufficient to say, that the testimony does not sustain the allegation, or rather, is not sufficient to overcome the positive denial made in the answer. In the first place, the testimony of the witness is by no means definite and clear, that defendant ever extended the time, and least of all, six months. In the next place, he was not present at any negotiation between the parties, but the witness details what defendant said. This kind of testimony is always weak, and must be received with great caution. But a■ more conclusive view than either of the preceding is, that this testimony stands uncorroborated. No other witness is introduced, and no circumstance or circumstances are given, in support of the averment in the bill. Where a material avermentin a complainant’s bill in chancery, is positively denied by the respondent, as in this case, the testimony of one witness is not sufficient to overcome the answer. This rule is too familiar to the professional mind, to require more than its statement. There must be something more than the oath of the witness against that of the respondent. Eor these reasons, we conclude, that the averment in the bill, that the time was extended, is not sustained by sufficient -proof, to entitle complainant to relief on this ground.

As shown in the statement, there was some testimony as to the manner in which defendant transacted his business. This testimony was not regarded as pertinent, and therefore, was not set out at length. This, perhaps, needs a word of explanation. Two or three witnesses speak of having had time extended to them on land contracts by the defendant, and of his custom requiring prompt payments. There is nothing, however, to show that either party to this contract acted in view of any such custom, or that plaintiff, at least, knew anything of it. There is no pretence that any general universal custom governing all contracts made by defendants, is shown, and under such circumstances, we regard all such proof immaterial.

The decree below is reversed, and cause remanded, with instructions to the court below to dismiss the bill;