11 Paige Ch. 352 | New York Court of Chancery | 1844
As a general rule, time is not of the essence of a contract for the payment of money, upon an agreement for the sale and conveyance of real estate. And I can se^ nothing in the circumstances of this case to justify the court in excepting it from the general rule. The contract, it is true, contains a general provision, that if default shall be made in either of the payments Strobeck shall forfeit all the previous
The case of Wells v. Smith, (7 Paige’s Rep. 22,) was entirely different from this. There, the performance of the condition precedent, on or before the particular day specified, was essential to the vendor’s security. The deed of the lot was to be delivered on a particular day, and the purchase money was to be secured by a bond and mortgage upon the premises; and to render the security perfectly safe, the purchaser was to build a house of particular dimensions upon the premises before that time, or pay f>1000 of the purchase money on that day, at his election. But he did neither; and by the express terms of the agreement, the vendor was not to give the deed, and take the bond and mortgage on the premises, in that event. In that case, too, the purchaser had only paid for the use of the property; so that there was in fact no forfeiture except the loss of a profitable speculation, which the purchaser failed to obtain the benefit of by his non-performance of a condition precedent to the vesting of the title of the property in him. \
The vice chancellor, in his opinion, has carefully reviewed most of the cases on this subject, both in this country and in England. It will therefore be useless for me again to travel
The decree appealed from is therefore affirmed, with costs.