Ellis v. Bryant , 120 Ga. 890 ( 1904 )

Lamar, J.

(After stating the foregoing facts.) This was an equitable petition to require Mrs. Bryant to specifically perform a contract expressed in an informal paper in which she acknowledged the receipt of $50 as part of the purchase-price ($1,950) of a described tract of land, with the further provision that the plaintiff should have thirty days to raise the money. The defendant’s answer admits the contract, but insists that’ time was of the essence, and contends that as the cash payment of $850 was not made within the thirty days, she was not obliged to receive the money or to make the deed. Had this been a mere offer, it might have been withdrawn at any time before it was accepted. Or if, for a valuable consideration, an offer had been left open for a definite period, it expired by its own terms on the day fixed, and thereafter there was nothing for the opposite party to accept. Where property is perishable and subject to rapid fluctuations in value, or where the damages arising from delay are of a character incapable of being computed, prompt performance may be a condition precedent to secure enforcement. But generally time is not of the essence of contracts for the sale of land; for such a construction would result in enforcing a penalty, “which equity abhors and the law does not favor; ” and interest will generally be treated as full conpensation for the delay. By express stipulation or reasonable construction, time may be made of the essence. Civil Code, § 3675 (8). Though even if such express stipulation is inserted as a penalty, it will be disregarded by courts of equity. It is never favored; and in all cases, in order for time to be treated as of the essence, it should clearly appear that such was the intent; as, for example, by a provision that the agreement shall be void unless the act named be completed by a certain day, or by other equivalent expression. Taylor v. Baldwin, 27 Ga. 442 ; Chapman v. Ayer, 95 Ga. 581; Hudson v. Dukes, 21 Ga. 403; Dukes v. Baugh, 91 Ga. 33 ; McDaniel v. Gray, 69 Ga. 434. But merely prescribing a day on or before which the act must be done does not render the time essential with respect to such act. In DeCamp v. Feay, 5 S. & R. 328, it was held that a stipulation that the first installment was to be paid by the vendee on the 1st of October, when a title was to be conveyed by the vendor, was nothing more than a naked covenant to pay money át a particular day; which has never been held to make time of the essence of the contract, for the plain reason that it admits of adequate compensation ascertained by law in the shape of interest.” Of course the delay must not be wilful, must not be unreasonably long, and must not have occasioned damage which will not admit of compensation. And where there has been a failure to comply within the time stipulated, the other party may, by notice, fix upon and assign a reasonable time for completing the contract, and may call upon the party in default to do the act to be done by him within this period; and the time thus allowed 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 on Contracts, §§ 370, 374, 380, 384, 387, 392, 395. But here, instead of giving such notice, the defendant, after the pay-day had passed, wrote the plaintiff a letter which showed that she regarded the contract as still of force (Id. § 397); to whiéh the plaintiff replied in writing, explaining the cause of delay and promising to pay in a short time. McCaw Mfg. Co. v. Felder, 115 Ga. 415.

There was no demurrer and no question as to the statute of frauds. The paper was signed by the party to be charged therewith, and if there had ever been any want of mutuality, it was cured by the letters and also by the filing of the petition. Perry v. Paschal, 103 Ga. 137; Sivell v. Hogan, 119 Ga. 168. From the standpoint of the. defendant, the paper was in the nature of a bond for title with part of the purchase-money paid, with no stipulation that time was of the essence, or that the contract should be void on a failure to meet the next instalment on the pay-day named. Besides all which there was evidence that the plaintiff had been admitted into possession.. The case should not have been dismissed. Civil Code, § 4037.

Judgment reversed.

All the Justices concur.