
    Marcus T. Hun and Others, as Trustees under the Last Will and Testament of Joshua Howard King, Deceased, and Others, Respondents, v. William Bourdon, Appellant.
    
      Specific performance — xohen time is not of the essence of a contract — a delay by the vendor of five days in making delivery o ” a deed does not excuse performance by the vendee.
    
    Time is not of the essence of a contract for the sale of real estate unless the agreement contains a clear and express stipulation to that effect. The insertion in the contract of a date for its completion does not make such date of the essence thereof.
    The court will not assume that time is of the essence of a contract, except where the subject of the sale has a fluctuating value, or where the object of the contract is a commercial enterprise, or the delay in completion would involve one of the parties in a serious loss.
    When time is not by stipulation or by implication of the essence of the contract, a court of equity will disregard it and decree specific performance, at the instance of a party who has, by his default, lost his right of action at law, provided it be conscientious that the agreement be performed.
    Circumstances considered tinder which the failure of the vendor to deliver the deed until five days after the time fixed for such delivery will not excuse the vendee from his duty to perform the contract or defeat the vendor’s right to maintain an action to compel its specific performance.
    
      Appeal by the defendant, William Bourdon, from a judgment ' of the Supreme Court in favor of the plaintiffs* entered in the office of the clerk of the county of Albany on the 10th day of July, - 1900, upon the decision of the' court rendered after a trial at the Albany Special Term in an action brought to compel the specific performance of a contract to purchase real estate.
    . On Hovember 13, 1899, a contract was executed by J. Howard King and the plaintiffs Dudley Olcott and Frederic P. Olcott, individually and as executors of John J. Olcott, deceased, of the first part, and by the defendant, of' the second part, whereby the parties of the first part agreed to convey to the defendant, free from liens and incumbrances, a piece of . land situate in. the city.of-Albany, for which the defendant agreed to pay $100 on -the execution of the contract, $1,900 on December 1, 1899, when a warranty deed' of 'the premises was to be delivered, and on that day was to execute a bond and mortgage for $2,50.0, the remainder of .the purchase money, payable in three years from the date of the contract, with.. interest.
    On Hovember twenty-eighth Mr. Silberman, the attorney representing the defendant, informed Mr. Hun,, the attorney representing the plaintiffs, that he had completed his examination of the title and immediately thereupon Mr. Hun prepared a deed which he mailed on the twenty-ninth of Hovember to Mr. F. P. Olcott, one of the - plaintiffs, at his residence in Hew Jersey. The twenty-ninth- of Hovember was Thanksgiving Day, and on Friday, the thirtieth, Mr. Hun, learning that Mr. Olcott and wife were in Hew York, at once communicated with him with regard to the deed having been sent to Hew Jersey, and on December fourth learned that the deed had been executed by Mr. Olcott and wife. The deed was received by Hun from Olcott on December fifth, and Mr. Hun then sent it to ■ the plaintiff Dudley Olcott, who resided in Albany, to be executed, and learning that he was in Hew York immediately sent it by special messenger from Albany, and Dudley Olcott executed it on that day, the fifth, and it was on the same day -returned to Mr. Hun, who, on the next morning, December sixth, met the defendant at Mr. Silberman’s office, submitted to Mr. Silberman the deed, with the chamberlain’s certificates of sale and assignments of same to defendant. Silberman examined the papers, referred Hun to defendant for an answer and defendant said that it was too late, that he had moved, and he refused to accept the deed or to pay the money and execute the bond and mortgage. No objection was made to the papers not being sufficient to convey a good title.
    On the day when the deed was to be delivered, December first, Silberman and defendant called at Hun’s office, asked him whether he was ready to close the transaction, and Hr. Hun said that he had sent the deed to New York to Mr. Olcott and it hadn’t been returned yet, and suggested that they come back the next day. The defendant went there the next day, and the papers had not yet been received. The third of December was Sunday, and on Monday, December fourth, the defendant, with his attorney, called upon Mr. Hun, who informed defendant that he had not yet .received the deed from New York. Defendant said that lie wanted the matter closed up that day, otherwise he would withdraw, and made a tender of the $1,900 and demanded the deed. He also had with him a • bond and mortgage unexecuted, and no oiler was made to execute them.
    On December fourth, after the interview at Mr. Hun’s office, Mr. Hun, on learning from Mr. F. P. Olcott in New York that the deed had been executed by himself and wife, sent a letter to Mr. Silberman, the defendant’s attorney, which was received, stating that the deed would be ready the next day, on the fifth, to which no answer was returned.
    The defendant, with his family, on the fifteenth of November, went into possession of the premises, and on the night of the fifth -of December, after the receipt of the notice by his attorney that the •deed would be ready for delivery on the fifth, moved out of the house with his family.
    At the time of the tender of the deed to the defendant on December sixth there were also tendered to him certificates of sale by the ■chamberlain of Albany of lots' 94 and 108, of October 19, 1898, to E. W. Rankin, the indorsement of Rankin thereon in blank, and the transfer by J. Howard King, dated November 30, 1899, acknowledged December 6, 1899, transferring the interest of King in the certificates to the defendant; also certificate by the chamberlain, dated December 6, 1899, stating that a certificate of sale of October 19,1898, to Rankin for lot 74 for an assessment for a sewer had been surrendered for cancellation, and the sale was canceled on , the boobs of the chamberlain’s office, to which papers no • objection was made by the defendant or by his attorney.
    
      J. Newton Fiero, for the appellant.
    
      Marcus T. Hm%,Iox the.respondents.
   Edwards, J.:

- In an action to compel the specific performance of a contract fertile sale of real estate, time is not of the essence of the contract unless in the agreement it is clearly and expressly stipulated that it shall. be so; The mere insertion in the contract of a day for its completion does mot make such. time the essence of the contract,, and it will not be implied as essential except where the subject of the sale has a fluctuating value, or where the object of the contract, is a commercial enterprise, or the delay in completion would involve one of the parties in a serious loss. ' When time is not by stipulation or by implication of the essence of the contract a court of equity will disregard it and decree specific performance when an action at law has been lost by default of the party seeking performance, if it be conscientious that the agreement be performed. The fact that the party may not have an action at law is a reason for a decree for specific performance. (Fry Spec. Perf. [2d Am. ed.] §§ 709, 710, 712-719; Willard Eq. Juris. [Potter’s ed.] 292-294; Hubbell v. Von Schoening, 49 N. Y. 330 ; Day v. Hunt, 112 id, 195 ; Higgins v. Eagleton, 155 id. 466.)

In this case time was not of the essence of the contract (Day v. Hunt, 112 N. Y. 194; Schmidt v. Reed, 132 id. 109; Higgins v. Eagleton, 155 id. 466), and under the circumstances of the case a. decree for specific performance was properly granted.

The vendors fully complied with the rule requiring diligence, and have reasonably excused their failure to tender performance on the ' day named in the contract. Immediately on ascertaining from the defendant’s counsel on November twenty-eighth that his examination of the title had been completed, the attorney for the vendors prepared the deed and sent it to his clients for execution, and. ordinarily would have had it ready in time for delivery. Circumstances which could not have been anticipated caused a brief and unavoidable delay in its execution, and the attorney used more than ordinary diligence to have it executed in time. There was never at any time any intention manifested on the part of the vendors to abandon.the contract, but, on the contrary, a desire was shown for its performance. Nor did the defendant at any of the interviews on and after December first, when informed of the cause of the delay, raise any objection, but, on the contrary, acquiesced therein until December fourth, when, without any warning, he summarily demanded the delivery of the deed to him and announced his intention to withdraw.” The attorney for the vendors at that time notified him that the deed, had not yet been returned to him, but that he was at every moment expecting it, and on the same day, after hearing from one of the vendors in New York that the deed had there been executed by himself and wife, the attorney for the vendors immediately wrote a letter to the defendant’s attorney apprising him of the fact, and that he expected the deed would be ready for delivery on the fifth.

The defendant was then in possession of the premises under the contract, and had been since the fifteenth of November, and had no apparent reason, under the circumstances, to object to the brief delay. Notwithstanding the defendant was well aware of the desire and of the diligence being used by the vendors to perform- the contract, and that the attorney expected to have the execution of the deed completed on the fifth, for some reason, not consonant with good faith, he moved out of the.house on that night, and on the following morning refused to accept the deed upon the ground that it was too late. To permit him thus to avoid his contract would be against all principles of equity.

The defendant concedes that he acquiesced in the plaintiffs’ delay until December fourth, when he summarily demanded the performance of the contract. He could not thus relieve himself from his obligations under the agreement. It was competent for him then to fix a time within which he would insist upon the delivery of the deed or the abandonment of the contract, but the time specified by a notice of such intention must be a reasonable time, a sufficient time to enable the vendor with diligence to perforin. (Fry Spec. Perf. [2d Am. ed.] §§ 722, 724, 728; Hubbell v. Von Schoening, supra ; Schmidt v. Reed, supra.)

Until December fourth the defendant had by his words and conduct waived a strict compliance - with the contract, and within two ■days after he first manifested an intention to insist upon an immediate tender of the deed, it was tendered to him and was refused.

The objection now made to the certificates of sale and the t-rans- - fers of the same tendered to the defendant is without merit. First, they were a substantial compliance with the agreement to convey free from liens and incumbrances. Second, they were submitted to the defendant’s attorney in -charge of the examination of the title, and no objection was made to them at the time of the tender, nor to the title in any respect. Had the defendant required the sales to be canceled instead of a transfer of the certificates, it could readily, and no doubt would, have been accomplished by the vendors. The defendant having made no objection to these certificates, but having refused to- perform solely on the ground that it was too late, the objection now made comes too late. (Higgins v. Eagleton, 155 N. Y. 466.)

It may be doubted whether the court did not err in admitting, under the objection of the defendant, the testimony of Mr. .Hun to the effect that he told Mr. Silberman before the execution of the contract that it would be delivered with the understanding that if he (Silberman) was not prepared to close the title, time should not be considered of importance and he should have reasonable time within which to 'make an examination of the title .beyond the first day of December. ■ But if this were error I think it was harmless. It was simply a promise to give the defendant’s attorney further time to examine the title if he required it, and it was undisputed that it was not required by him in this case .and the ¡examination of the title was completed by him before the first of December. This testimony does not seem to have been at all material'and its admission is not a ground for reversal. With this eliminated from the case, the . undisputed facts are quite sufficient to support the judgment.

The judgment should be affirmed.

Judgment unanimously affirmed, with costs.  