| Ga. | Jan 15, 1859
By the Court.
delivering the opinion.
The question is, whether, the second charge of the Court was right,? That charge amounts to this, that time was not of the essence of the contract; that, although, Baldwin, did not offer to pay the purchase money on the day it fell due, yet, the contract of purchase, still subsisted, aud be had still a reasonable time within which, to pay that money. Was this charge right?
The general principle, no doubt, is, that, in equity, timéis not of the essence of the’contract. That this is true of
And. I think it doubtful myself, whether, the conclusion to be drawn from the English authorities, as they at present stand is not, that time is in no case of the essence of the contract. I think it certain, that they, at least, do not go further than this, — that, it is possible so to frame a contract, ¡that time shall be of its essence.
Conceding, however, ihat a contract may be so framed, that time shall be of its essence, the question is, whether the «contract in the present case, was so framed.
What is the test? This,I suppose, we may say, that the words shall be such, that they clearly show the intention to be, that time shall be of the essence of the contract. 2 White & Tudor., Lead. Cas. 19; and what words will b® sufficient for this ? Words, at least, as strong as these, “ that the agreement shall be void, unless the purchase be completed on a certain day.” 2d Ibid.
Are there any such words in this agreement? There are mot. This agreement is evidenced by a bond for titles, and the condition of that bond, is as follows: “ The condition <of this obligation, is this, that if the said Benjamin Crabb shall make,or cause to be made, to the said Baldwin,” “a good and sufficient title” “ to lot No. one hundred and forty-two,” “ when the said Moses F. Baldwin shall have paid, to the said Crabb, the sum of one hundred and fifty dollars, which payment is to be made by the twenty-fifth of December, that then the above bond or obligation, shall be null and void, otherwise to remain in full force.”
There is nothing in these words, importing that the contract of purchase was to be void, if the purchase money was not paid on the appointed 25th of December. They merely say, that the vendor’s 6on«!shall be void, when he makes a title; and, that he must make a title, when the purchase money is
We think, then, that these words, taken by themselves, are not sufficient, to show it to have been the intention, that the contract of purchase was to be void, unless the purchase money was paid on the 25th day of December.
And this view from the words, is confirmed by the conduct of the parties. Baldwin, the purchaser, went into possession at the time of the purchase, and he, and his assignee, DuBose, have remained in possession ever since.
In this conduct, Crabb and his assignee, Taylor, acquiesced, until the bringing of the ejectment, which was brought only a short time before the commencement of the bill. They did not complain; they did not demand re-possession of the land, or, of the bond for titles; they did not offer to return the note given for the purchase money, until they came to answer the bill. All this goes to show, that the parties, themselves, interpreted their contract, as not meaning, that time was to be of its essence.
We think, then, that the Court was right, in the part of its charge, in which, it told the jury, that time was not of the essence of the contract.
Was the Court also right in the other part of its charge, in which it told the jury, that Baldwin was entitled to a reasonable time within which, to pay the purchase money? We think so. This part of the charge, was hut a corollary from the first part. So, if that was right, this was, of necessity, right. This, indeed, was, I believe, not disputed.
The first charge was in favor of the plaintiff in error. The two charges are all the decisions stated in the hill of exceptions.
There was no motion for a new trial. Therefore the action of the jury cannot come before this Court, consequent
Judgment affirmed.