
    Ewing v. Crouse.
    Courts of equity do not generally view time as of the essence of a contract; but if it appears from the terms of the contract or the conduct of the parties, that the design of the parties was to render it essential, it will be so regarded.
    
      
      Tuesday, June 5.
    APPEAL from the Clinton Circuit Court.
   Davison, J.

This was a suit in. equity for the specific performance of a contract to convey real estate. Ewing, on the 24th of April, 1852, executed to Crouse the following instrument:

“ Received this day of Daniel B. Crouse 100 dollars, as part payment of certain lands,” (describing them,) “which I have at this date sold to him for 4,000 dollars, to be paid as follows: 900 dollars by the first day of October next; 1,000 dollars on the first of January, 1853; and the remainder in two equal annual payments. On the receipt of the first payment and the execution of a mortgage on the above-described property, I bind myself,” &c., “to execute and deliver to Crouse a deed in fee for said lands. Should Crouse fail to make the first payment promptly, the herein receipted 100 dollars shall be considered a forfeiture on the part of Crouse, and all obligation on my part be null and void. Thomas Ewing”

There is in the record an agreed statement of facts, which is as follows: At the time of the above contract, Crouse held from Ewing a few acres of said lands, under an unexpired lease, which, by their mutual assent, was then cancelled. The parties met on the 25th of September, 1852. On that day Ewing and wife executed a deed in fee simple for the premises to Crouse, who then made his notes to Ewing for 3,000 dollars; also a mortgage on the same lands to secure their payment; all of which were deposited with one John H. Smith, who, by agreement, was constituted the agent of both parties. Smith was to .deliver over the deed, notes and mortgage to the parties respectively entitled to them, on the payment by Crouse of the said 900 dollars on the 1st of October, 1852. At that time, viz., the 25th of September, Ewing told Crouse that his personal property was advertised for sale on the 2d of October, and he expected to start for Wisconsin on the fourth of that month; that he could not move unless he got his money; and if he, Ewing, did not get it, he would move into the house on the premises. Crouse, in reply, told him that he should not be disappointed.

On the second day after the deed, &c., were deposited with Smith, Crouse started for Ohio on business. At that time he held two notes, one for 600 dollars and another for 300 dollars, both due and on reliable men, each of whom promised the money by the 1st of October. Before leaving he directed his agents not to fail in getting the money for Ewing; if not on the notes, by some other means. Ewing, on the said 1st of October, demanded the 900 dollars of Crouse's agents, when he was told by them that it could not be raised; that there was nothing but promises for it, and they could not be relied on; that he was then safe, and they would advise him to keep himself safe. Smith then delivered the deed deposited with him to Ewing, who declared the contract no longer obligatory, and that he would take possession of the premises. He stopped the sale of his personal property and on the next day took possession. After this, on the fifth of the same month, one of Crouse's agents tendered the 900 dollars in bank paper, and also the notes and mortgage; but Ewing refused them, saying it was too late, that he was no longer bound, and that the bank bills were no money at all—nothing but rags. Afterwards, and before the institution of this suit, Crouse tendered 900 dollars in specie, and it being refused by Ewing, deposited it in the clerk’s office of said Court.

It was proved that Crouse did work, such as grubbing and cutting down underbrush on the premises, which cost him 50 dollars, but which was of no value to Ewing. The lands, at the time of the contract, were in possession of a tenant of Ewing, whose term expired on the said 1st of October.

The bill prayed that a specific performance of the contract be enforced against Ewing; and the Court on a final hearing rendered a decree in accordance with the prayer.

The proofs clearly show that the vendee failed to pay or tender the 900 dollars on the day stipulated; but he contends that the language of the contract relative to the forfeiture, viz., “ should Crouse fail to make the first payment promptly," &c., does not confine it absolutely to the day; that in ordinary parlance, to pay “promptly” is to pay on the day the money is due or shortly after.

This position, it seems to us, is not strictly correct. The contract stipulates that the money shall be paid by the first day of October. And we perceive nothing in the force of the term promptly sufficient to extend the day of payment beyond that period. From the whole contract, it is evident that the parties intended to limit the time of payment of the 900 dollars to the day specifically named; and the word “promptly” must be so construed as to be consistent with their intention.

The main point of inquiry is, whether the vendee is entitled to a specific performance ? Having failed to perform at the time agreed on, he could not have sustained a remedy at law. But Courts of Equity do not generally view time as being of the essence of the contract, unless it appear from its terms or the conduct of the parties that the design of the contractors was to render it essential. 7 Blackf. 227.—2 Story’s Eq. Jur., s. 776.—1 Sugden on Vendors 426. “In the ordinary case of the purchase of an estate, the general object alone is the sale for a given sum, and the stipulation as to the day of payment in truth means that the purchase shall be completed within a reasonable time. But where it necessarily follows from the nature and circumstances of the contract, that the parties intended to stipulate for a particular thing to be done at a particular time, such a stipulation should, even in a Court of Equity, be carried literally into effect.”

There is, indeed, something peculiar in the language of the present contract. It provides for a special forfeiture in case the money should not be paid promptly, and then declares that in the event of such failure to pay, “ all obligation” on the vendor’s part shall be “null and void.” These provisions seem to show that the parties, at the time of the sale, contemplated a literal performance within the period named. But suppose this view to be incorrect, we think their subsequent conduct affords sufficient proof that both of them regarded and “expressly treated” the time agreed on for the payment of the 900 dollars as an essential element in the contract. This conclusion is not doubtful when the various transactions which occurred between the parties on the 25th of September are considered. Crouse was then, in effect, reminded that “ the time ” was material, and his reply indicates that he so understood it. And moreover when Ewing was advised by Crouse's agents that the money could not be raised, it appears to us that he had a perfect right to abandon the contract. Whether the vendee can or not recover the money advanced when the contract was executed, or for improvements made on the lands, are questions that do not arise in the record, and upon which no opinion is given.

H. Allen and I F. Suit, for the appellant.

S. A. Huff, R. C. Gregory, R. Jones and J. W. Blake, for the appellee.

What we decide is, that the complainant has not made such a case as entitles him to a specific performance. Slaughter v. Harris, 1 Ind. 238.

Per Curiam.

The decree is reversed with costs. Cause remanded, &c.  