Gable v. Hain

The opinion of the court was delivered by Rogers, J. We think it clear, that time was of the essence of the contract; for it would be an unreasonable construction of the agreement, that the defendant should have an indefinite period of time for the payment of the money. To avoid this uncertainty, seems to have been the object of the compromise. The parties themselves, have, fixed a reasonable time for payment of the purchase money, which it was the object of the suit to enforce. And this it would have been competent for the jury to do, and is an ordinary operation of a court of chancery, on a bill of foreclosure. In Hollingsworth v. Fry, 4 Dall. 345, a case not stronger than the present, the time of payment was made a substantial, and not a mere formal circumstance. It was there decided, that when time enters into the essence of a contract, it must be observed. In sales by private agreement, it is usual to fix a time for completing a contract, which at law is deemed of the essence of the contract. But in certain cases equity will carry the agreement into execution, notwithstanding the time appointed be elapsed. But this depends upon the peculiar circumstances of the case, and is never done, when it is contrary to the manifest intention of the contracting parties. When time is made material, it is as binding on a court of equity, as a court of law. If this be the correct construction of the agreement; on the first of March, 1820, Gable became re-vested with the absolute title to the land; and a title thus acquired, cannot be divested, except by some act or agreement, on some express authority from the principal. If the plaintiff had accepted the [267] money after the stipulated time, it would have amounted to a waiver; not so with respect to its receipt by the attorney, whose power only extended to issuing a habere facias, to obtain the fruits of the judgment. Although the power of an attorney at law, is more extensive in Pennsylvania, than in England, yet he cannot, without express authority from his principal, convert his clients money into land, or vice versa, as was decided in Huston v. Mitchell, 14 Serg. & Rawle, 307. An attorney at law is authorised to do those things, which pertain to the conducting a suit, but has no power to make a compromise, by which land is to be taken, instead of money. Opinion of the court reversed, and re-restitution awarded to the plaintiffs.