Hermansen v. Slatter

Jones, J. The trial court found as facts, in addition to the making of the contract and the payment of $1,000, that it was the intention of the parties that the time fixed for performance should be a material and essential part-of the .-contract; that on November 1st defendants failed to execute their part of the contract; that defendants did not procure a sufficient' abstract until December 23, 1920, and did not tender it until March 10, 1921, when the cause came up for trial; that the plaintiff fully performed his part of the contract ; that the time for performance had not been extended; and that plaintiff was not estopped to claim the benefits of the provisions of the contract. In finding that time was of the essence of the contract the trial court did not base the decision on the written contract alone. The contract contains no specific provision making time of the essence. Where time is not of the essence of the contract and the thing to be done can be as well done at a later as an earlier day without detriment to the party for whom the thing is to be done, the delay will not prevent specific performance. It is the modern tendency, especially in equity, not to treat time as of the essence unless there is some express term in the contract so providing. 13 Corp. Jur. 686; 4 Page, Contracts (2d ed.) §§ 2105, 2106, [430] But, “although there is no express provision in a contract which makes time of the essence, the contract taken as a whole and construed in connection with the surrounding facts and circumstances may show that the parties intended that time should be of the essence of the contract, and if such intention appears, full effect will be given to it.” 4 Page, Contracts (2d ed.) § 2108. It was agreed that the conveyance was to be made and an abstract showing merchantable title was to be furnished on a given day, and there was a condition that a loan might be procured on the premises payable on the same day. There was testimony that the vendee had sold his own farm and that he notified the vendor on July 11th and July 22d of this fact; that he then gave notice that, as he had sold his farm and must give possession on November 1st, he must then get possession of the premises involved in the contract. All these facts were doubtless considered by the trial court in coming to the conclusion that it was the intention of the parties that the question of time was not merely formal but was essential. In order to prevent injustice it has frequently been declared to be the rule that: “If either the vendor, or the vendee has improperly and unreasonably delayed in complying with the terms of the agreement on his side, the other party may, by notice, fix upon and assign a reasonable time for completing the contract, and may call upon the defaulting party to do the acts t o be done by him, or any particular act within this period. The time thus allotted then becomes essential, and if the party in default fails to perform before it has elapsed, the court will not aid him in enforcing the contract, but will leave him to his legal remedy.” Pomeroy, Spec. Perf. (2d ed.) p. 482, sec. 395, citing many cases. In view of the undisputed fact that the. vendor had his abstract April 1st and that it showed the title to be defective; that he had made no move to have it corrected until October 15th, there is much force in the claim of counsel for vendee [431] that the notices given on July 11th and 22d sufficed to make time an essential element of the contract. It is clear that the acts of parties subsequent to the execution of the contract may have an important bearing in determining the question whether time was intended to be essential. James v. Knox, 155 Wis. 118, 143 N. W. 1071. It is true that there is conflict in the testimony as to whether these notices were given and as to the time when the vendee could have obtained the abstract for examination, but these were matters for the determination of the trial court. It is argued by counsel for the vendor that, even if time was of the essence of the contract, the vendee by his conduct waived the provision and estopped himself to claim the benefit of it. This claim is based on evidence that the vendee obtained the abstract for examination by his attorney and gave no notice of any objection to- thq_ title until six weeks later, October 15th, and that on that day, at the office of the vendor’s attorney, it was discussed that’ it would require five or six weeks to perfect the title and that the vendee made no objection, and that relying on this the action to quiet title was commenced and carried through. The counsel for the vendor are correct in their contention that parties may waive the strict performance of contracts of. this character and may be estopped by their conduct. There is undoubtedly force in their claim that the abstract was retained for an unreasonable time for examination by the vendee and his counsel, but the parties and their counsel lived in towns a considerable distance apart and the vendor had undoubtedly shown great negligence by his delay in furnishing the abstract and by failing for so long a time to take any steps to comply with the plain terms of his contract. If he had acted with reasonable promptness, or 'if the court had found that his delay had been waived, the court would have been justified in compelling specific performance even though the title was not perfected until the time of the trial. For this there is abundant authority. [432] Gates v. Parmly, 93 Wis. 294, 66 N. W. 253, 67 N. W. 739; Pomeroy, Spec. Perf. (2d ed.) sec. 376, and cases cited. The argument that the vendor was subjected to expense in perfecting his title has little weight, since such a proceeding would have been necessary at some time to give him a marketable title. But the questions of waiver and estoppel in this case were questions of fact for the trial court. The trial judge heard and saw the witnesses and their demeanor, and we do not feel justified in disturbing his findings holding that there was no waiver or estoppel. By the Court. — Judgment affirmed.