Standard Lumber Co. v. Miller & Vidor Lumber Co.

Williams, C. J. (after stating the facts as above). This cause having been tried by the court without the intervention of a jury, wherever there was a conflict as to the facts proved, the determination of the trial court thereon will be conclusive here. The first question arising is whether or not in the contract between plaintiff and defendant as to the delivery of the lumber by a specified date time was of the essence thereof. Section 809, Wilson’s Bev & Ann. St. 1903, reads as follows: "Time is never considered as of the essence of a contract, unless by its terms expressly so provided.” In the case of Snyder v. Stribling, 18 Okla. 205, 89 Pac. 233, the court says: “No room is. left for cases of necessary implication. The extreme difficulty of applying the equitable rule and of determining what class of contracts make time as of the essence of the contract by necessity or implication has given the courts much perplexity, and has furnished a fruitful field for litigation. Under our statutory rule all doubt is banished, and, if the contracting parties desire to make time as of the essence of the contract, they must so expressly stipulate in the contract, otherwise time will not be so considered. There is nothing in the case at bar that shows that time was intended to be treated as of the essence of the contract. * * * ” Section 1267, Rev. Civ. Code S. D., is identically the same as section 809, supra, (Wilson’s Rev. & Ann. St. 1903.) In the case of Strunk v. Smith et al., 8 S. D. 407, 66 N. W. 926, the court says: “The above section, which is in derogation of the common law, is taken from what is lmoym as the Civil or David Dudley Field Code, prepared for the state of New York, and to which the commissioners affixed the following note: ‘This provision is *625 new. As to the present law upon the subject, see Story, Eq. Jur. § 776. It involves so much difficulty that the commissioners deem it wise to adopt this more stringent rule.5 Civ. Code, p. 353. The terms, condition, and purpose of the deposit are clearly expressed in the written instrument by which the transaction was evidenced; and when considered, as it must be, with the deed and written agreement of the bank to pay respondent interest thereon, it is amply sufficient to show the clear indention of the parties, and to supersede all prior or contemporaneous oral negotiations concerning the subject to which such instruments relate. Comp. Laws §§ 3545, 3553-3555, 3557. While it is in effect stated that the patent is to be furnished within two years from the date of the contract, there is nothing written to indicate that it was ever intended that respondent, in case of a failure in that particular, should forfeit $700 of the money for which he had sold his farm, * * * Our statute will neither allow time to be of the essence of a contract by implication nor permit an oral extrinsic showing that such was the intention of the parties to a written contract, the terms of which are expressed in clear and explicit language.” Section 5363 of the Eevised Code of North Dakota of 1905 is also identically the same as section 809, supra (Wilson's Rev. & Ann. St. 1903.) In the case of Fargusson v. Talcott, 7 N. D. 183, 73 N. W. 207, the court, in construing this section, says: “For this reason he should be allowed to stipulate in his contract that a failure to pay on the day specified shall destroy the rights of the defaulting party in a court of equity as 'well as in a court of law. This provision need not be in any particular form, but it is usual to express it in the manner in which it was expressed in the contract in question. After some vacillation on the part of the English Chancellors, the rule was there adopted, and it prevails in this country as well, that the parties may by their agreement make time as of the essence thereof; and that in such a case a failure to comply with the terms of the contract, at the time named therein for performance, ’will debar the person in default from claiming any rights thereunder, even in a court of equity.” In the case of Longworth v. Taylor, 1 McLean, 395, Fed. Cas. No. 8,490, the court said: *626 “In almost all modern cases in which time has been strictly regarded it was made of the essence of the contract by the express agreement of the parties; and the language of the decisions combats the idea that this cannot be done. * * * In looking to the facts of the case under consideration, it appears that time was not made of the essence of the contract. The times at which the payments were to be made, and the period in which the deed was to be executed, were fixed in the contract; but there was no expression that a failure in any of these should void the agreement.” It was clearly not the intention in the adoption of such a statutory provision as this to require the identical language of the statute to be inserted in a contract before time could become the essence thereof. Code provisions have ever been adopted for the purpose of abolishing technicalities and applying substantial justice, and it necessarily follows that where it appears by the language expressed in a contract, regardless of the phraseology or the form of expression used, that it was the intention of the parties thereto that time should be the essence of the contract, that should be the construction in law. Of course, in making a proper construction, a court will be confined to what is expressed in the contract,, and will be precluded from going outside of the same and considering contemporaneous and extraneous matters. For a determination of that character, including therein matters outside of the expressed contract, in order to make time the essence of the contract, would be by implication, and by the adoption of section 809, supra, time cannot be construed to be the essence of a contract by implication. In view of-the conclusions hereinafter reached, it will neither be necessary to determine whether or not by the language used in this contract that time was the essence of the same, nor that after the expiration of the time limit in demanding the shipment, assigning as a reason that the delay would occasion great expense, would amount to a waiver thereof. In any event, before the defendant would have been entitled to ■ special damages, it would have been necessary for it to have proved by a preponder- *627 anee of the testimony that at the expiration of the time limit it could not have procured the lumber covered by said shipments from others in time to have completed the building in question without the incurring of such damages as was claimed by the defendant in this action. See Murdock v. Jones, 3 App. Div. 221, 38 N. Y. Supp. 464. As a general rule, the measure of damages is the difference between the contract price and the price at which the contracted articles can be obtained in the nearest market, and as to whether or not the defendant brought itself within the exception and by proof put itself without the general rule so as to be able to claim special damages was a question of fact, and is concluded by the general finding of the court. See Booth v. Mill Co. 60 N. Y. 487; Smith v. Flanders, 129. Mass. 324. It is not necessary to determine as to whether or not the plaintiff could avail itself of the contention that the contract between the defendant and the said L. E. Lee was void on account of the statute of frauds. But see Mewburn's Heirs v. Bass, 82 Ala. 622, 2 South. 520. All the issues having been found in favor of the plaintiff by the general finding of the court below, and every presumption in this court being in favor of such finding, we are unable to say that any error was committed against the defendant. The judgment of the lower court is affirmed. All the Justices concur.