Thurston v. Arnold

Eothrock, J. I. We have carefully read and considered the evidence in the case, It is voluminous, and a review of it here would serve no useful purpose. We believe that the referee’s findings of fact are fully sustained by the evidence. It is perhaps proper to say that the written contract by its terms did not make time as of its essence, but provided generally that the $1,200 was to be paid on the second day of September, 1872. The plaintiff endeavored to show that there was a subsequent parol extension of time. The referee, as we think, properly found that there was no such -extension, but that defendant insisted on a compliance at the time fixed, and that his situation with reference to other important business interests required that the payments should be promptly made. It further appears that the contract on plaintiff’s part was a mere speculation; that he did not have title to the Missouri land, and did not have any means to pay the $1,200, and relied on a re-sale of defendant’s farm at an advance to pay [46] for the Missouri land, that he did not succeed in making a re-sale by the time fixed for performance, but afterward, by taking in a partner in the speculation, raised the money and procured a deed, and tendered performance on the 17th day of September, 1872; which tender the defendant refused. These are the important features of the case. There are many other facts which we do not deem i.t necessary to refer to. Among the findings of the referee is the following: “ I further find from the testimony in the cause, independent of what appears on the face of the written contract between Thurston and Arnold, that the time therein fixed for payment of the consideration by Thurston to Arnold was understood and intended by the parties to be ‘ of the essence of the contract.’ I am of opinion that, as matter of law, evidence extrinsic to the written contract is competent to prove such intention and understanding.” 1 forman ce®1evidence. Counsel for plaintiff insist that extrinsic evidence is not competent for such purpose, for the reason that it varies and modifies the terms of the written contract. The contract provides for the payment to be made on a c]ay certain, and extrinsic evidence, consisting of the acts, statements and the verbal negotiations of the parties, showing that the time was intended to be essential, does not contradict or vary the writing, but rather confirms it, by showing that it means just what its terms provide. 1 Greenleaf Ev., Sec. 296; 3 Id., Sec. 366, and cases there cited. Time may be made the essence of the contract by the express stipulation of the parties, or it may arise by implication from the very nature of the property, or the avowed objects of the seller or purchaser. Taylor v. Longworth, 14 Pet., 172, and see, also, Gray v. Daniels, 2 Iowa, 126. 2 _._. • Equity will not ordinarily regard time as of the essence of the contract in a sale of real estate. At law such contracts are treated as other contracts, and in order to maintain an action the plaintiff must show performance or readiness to perform at the time fixed, unless performance be waived by the other party. Equity presumes that the time named in the contract was not intended as [47] essential by parties. This, however, is such a presumption as may be rebutted by parol evidence. 3 _._. equity. II. An application to enforce the specific performance of a contract is always addressed to the sound discretion of the chancellor, guided and governed by the general rules and principles of equity jurisprudence. In such cases relief is not a matter of right in either party, but it is granted or withheld according to the circumstances of each case when such rules or principles will not furnish any exact measure of justice between the parties. If, in the judgment of a court of equity, good faith and justice between the parties will be attained by enforcing the contract, the failure to perform, or of a readiness to perform, at the precise time fixed, will not prevent its enforcement. In this case, we are satisfied, equity will be better subserved by denying specific performance, than by granting it; and these considerations are independent of any question as to the right of defendant to show by parol evidence that time was intended to be the essence of the contract. The evidence satisfies us that it would be grossly inequitable to compel defendant, Arnold, to now perform, or to make compensation for inability to do so, finding, as we do, from the evidence, that on the day fixed he was ready and willing to perform, and was prevented from doing so by plaintiff’s default. Affirmed.