Makuen v. . Elder

AllbN, J. “It is the accepted rule of construction in this and other written contracts that the intent of the parties as embodied in the entire instrument should prevail, and that each and every part shall be given effect if it can be done by fair and reasonable intendment, and that in ascertaining this intent resort should be had, primarily, to the language they have employed; and where this language expresses plainly, clearly, and distinctly the meaning of the parties, it must be given effect by the courts, and other means of interpretation are not permissible.” Gilbert v. Shingle Co., 167 N. C., 286. Applying this rule to the contract, and giving effect to all its parts, the defendant agreed on 16 December, 1908, if he was satisfied with the purchase of the stock at the expiration of one year he would return the deed he held and would release the defendant from all obligations in the transaction, and the defendant agreed to return the purchase price of the stock if the plaintiff was dissatisfied at the expiration of one vear. This is the agreement of the parties, and as there is no allegation of fraud or mistake, we must give effect to it. *512 The plaintiff testified that he was satisfied with his entire investment, that he bought other stock, some as late as 1910, after he had attended stockholders’ meetings and had full opportunity to learn of the condition of the company, and he says: “I was not dissatisfied until after 1910,” more than one year after the making of the contract, and that he made no demand upon the defendant until the fall of 1910 or the spring of 1911. It is then clear that the plaintiff cannot recover on the contract' as it is written, because by its terms the liability of the defendant ceased on 16 'December, 1909, as the plaintiff was then satisfied with his investment and did not become dissatisfied until 1910. If we were to hold otherwise we would be making a contract for the plaintiff and defendant instead of construing and giving effect to the one they have made. The plaintiff, however, contends that the time fixed in the contract is not material, and invokes the equitable maxim that time is not of the essence of the contract. This rule usually obtains in courts of equity, but this is an action at law, and while the distinctions between actions at law and suits in equity, and the forms of all such actions, have been abolished (Constitution, Art. IY, sec. 1), “This provision does not imply that the distinctions between law and equity are abolished, or that the principles and doctrines of law and equity are so blended as to constitute one embodiment of legal science, without the differences that have heretofore existed between them and been recognized by courts of judicature in their application. Principles of law, principles and doctrines of equity, remain the same they have ever been. The change wrought is in the method of administering them, and in some degree the extent of the application of them.” Lumber Co. v. Wallace, 93 N. C., 25. “At law, time is of the essence of the contract. When any time is fixed for the completion of it, the contract must be completed on the day specified, or an action will lie for the breach of it. The rule is applicable where one party agrees to pay money to the other in consideration of the doing of an act by such other within a specified time. In such a case the promise to pay cannot generally be enforced unless the act is performed within the time.” 6 Ruling Case Law, 898. “Parties have the right to make their contracts as stringent as they please, and to make time of the very essence of the contract; and if one party, without the consent of the other, allows the specified time to pass, no matter from what cause, without performing the condition, the stipulated consequences must follow.” 9 Oyc., 697. This principle making time a material stipulation in a contract is peculiarly applicable and important in sales of stock, which fluctuate in value, and if an agreement to purchase should be extended beyond *513 tbe time fixed by tbe parties, obligations and terms might be imposed by tbe courts wbieb tbe parties would not have assumed when making tbe contract. If tbis is tbe proper construction of tbe contract and of its legal effect there can be no waiver, because the liability of tbe defendant ceased on 16 December, 1909, and thereafter there was no right existent in him which be would bave to assert to' relieve himself from tbe obligations of tbe contract, and consequently there was nothing to waive. “Tbe term ‘waiver’ implies tbe abandonment of some right that can be exercised, or of tbe renouncement of some benefit or advantage wbieb, but for such waiver, tbe party relinquishing would bave enjoyed. In order to constitute a valid waiver, tbe right or privilege waived must be in existence. There can be no waiver of a nonexistent, or lost, right.” 40 Oye., 258. Tbe judgment of nonsuit must be Affirmed.