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James and wife v. Knox
ViNjE, J.
The finding that the plaintiff Euclid W. James duly performed his part of the agreement within the time therein specified is supported by the evidence. Indeed, this assignment of error is not seriously argued in the brief, but it is insisted that the court erred in finding that the time fixed in the contract for its performance was of the essence thereof, and it is urged that a tender of performance by defendant on “June 6, 1912, was seasonably made. The contract contained this provision:
“It is mutually agreed by and between the said parties of the first part and the said party of the second part that all necessary papers in the transfer of the properties from each to the other as hereinbefore specified shall be ready for delivery from each to the other on or before the 1st day of March. 1912.”
[121] ' These are plain words and clearly indicate- an intention by both parties that tbe deal should be fully closed on or before the date specified. That both parties so understood it is also clearly manifest from the evidence of plaintiff Euclid W. James that on or about March 1st the defendant sought to have him sign a paper extending the time of performance of the agreement to March 11, 1912, which he refused to do. He further testified that on March 1st he notified Eohr, who held’ the deed in escrow, that if defendant wanted to close the deal he could come to his home at any time until midnight and he would be there to close the transaction. In view of the provisions of the agreement, and the evidence, the trial court properly held -that time was of the essence of the contract. Hall v. Delaplaine, 5 Wis. 206; Phillips v. Carver, 99 Wis. 561, 75 N. W. 432. Cases holding that a failure to pay a given sum of money upon a date designated or .that a failure to perform some other act within a specified time does not avoid the contract in the absence of any language therein or evidence showing that the time for such performance has been made material by agreement of the parties, rest upon a different basis.
By the Court.Judgment affirmed.