Sneed and another vs. Wiggins and another.

so treated it, or when it is necessarily so, from the nature and circumstances of the contract. The authorities already quoted, or many of them, sustain this exception; but in its support see particularly, 1 Johns. Ch. R. 370; 4 ld. 560, 561; 1 Young & Collier, 415; Story Eq. sec. 776; 4 Bro. 469; 4 Vesey, Jr. 589, note; 7 Id. 265. In Lloyd vs. Collett, Lord Loughborough argues as follows: "There is nothing of more importance than that the ordinary contracts between man and man, which are so necessary in their intercourse with each other, should be certain and fixed, and that it should be certainly known when a man is bound and when not. There is a difficulty to comprehend how the essentials of a contract should be different in equity and at law. It is one thing to say the time is so essential that in no case in which the day has been by any means suffered to elapse, the court would relieve against it and decree performance; the conduct of the parties, inevitable accident, &c., might induce the court to relieve. But it is a different thing to say, the appointment of a day is to have no effect at all, and that it is not in the power of the parties to contract that if the agreement is not executed at a particular time, they shall be at liberty to rescind it. I want a case to prove, that when nothing has been done by the parties, this court will hold, in a contract of buying and selling, a rule, that the time is not an essential part of the contract." In the case of Benedict vs. Lynch, 1 Johns. Ch. R. 375, Chancellor Kent sums up a review of the cases with the following opinion: "It may then be laid down as an acknowledged rule in the courts of equity, that when the party who applies for a specific performance, has omitted to execute his part of the contract by the time appointed for that purpose, without being able to assign any sufficient justification or excuse for his delay; and when there is nothing in the acts or conduct of the other party that amounts to an acquiescence in that delay, the court will not compel a specific performance. The rule appears to be founded in the clearest principles of policy and justice. Its tendency is to uphold good faith and punctuality in dealing. The notion that seems too much to prevail, that a party may be utterly regardless of his stipulated payments, and that a court of chancery will almost at any time relieve him from the penalty of his gross negligence, is very injurious to good morals, to a lively sense of obligation, to the sanctity of contracts and to the character of this court. It would be against all my impressions of the principles of equity, to help those who show no equitable title to relief."

Sneed and another vs. Wiggins and another.

Nothing that I could say would add to the copiousness and strength of this reasoning; it is entitled to be, upon the case before me, conclusive in its authority, because the case in which it was announced is like this case. There, as here, there was a contract to pay money by instalments at particular times, and upon failure to pay, the whole contract was to be void. There, as here, there was a failure to pay according to the agreement; and there, as here, the party in default went into a court of equity for a specific performance, without showing any thing to justify or excuse his default. In a more masterly way than any where else in the English books, so far as my research has extended, is this subject presented in Hepnell vs. Knight, 1 Young & Collier, 415, by Mr. Baron Alderson. His opinion is so satisfactory, that I shall make no apology for making from it the following extract: "Now the first question is, was time of the essence of this contract? After examining with as much attention as I can, the various cases brought before me during the argument, it seems to me to be the result of them all, that a court of equity is to be governed by this principle: it is to examine the contract, not merely as a court of law does, as to what the parties have in terms expressed to be the contract, but as to what is in truth the real intention of the parties, and to carry that intention into effect. But in so doing I should think it prudent, in the first place, to look carefully at what the parties have expressed, because in general they must be taken to express what they intend, and the burden ought, in good reason, to be thrown on those who assert the contrary. In the case of a mortgage, however, which I use for the purpose of illustration rather than as at all parallel to the present case, the court looking to the real contract, which is a pledge of the estate to pay a debt, treats the time mentioned in the mortgage deed, as only a formal part of it, and decrees accordingly, taking it to be clear that the general intention should override the words of the particular stipulation. So in the ordinary case of the purchase of an estate, and the fixing of a particular day for the completion of the title, the court seems to have considered, that the general object being only the sale of the estate for a given sum, the particular day is merely formal, and the stipulations mean, in truth, that the purchase shall be made in a reasonable time, regard being had to all the circumstances of the case and the nature of the title to be made. But this is only a corollary from the general position, which is, that the real contract, and all the stipulations really intended to be complied with literally, shall be car

Sneed and another vs. Wiggins and another.

into effect. We must take care, however, that we do not mistake the corollary for the original proposition. If therefore the thing sold be of greater or less value, according to the effluxion of time, it is manifest that time is of the essence of the contract, and a stipulation as to time must then be literally complied with in equity as well as at law. The cases of the sale of stocks and of a reversion, are instances of this. So also, if it appear that the object of one party, known to the other, was that the property should be conveyed on or before a given period, as the case of a house for residence, or the like. I do not see therefore why, if the parties choose even arbitrarily, prorided both of them intended so to do, to stipulate for a particular thing to be done at a particular time, such a stipulation is not to be carried literally into effect in a court of equity. That is the real contract. The parties had a right to make it. Why then should a court of equity interfere to make a new contract, which the parties have not made?"

It seems then manifest from these authorities, that if the parties expressly agree that time shall be important; if they stipulate that a thing shall be done or not done, at a given time, then time is of the essence of the contract, and it must be observed. Courts of equity, as well as of law, will hold the parties to their agreement; they will make for them no new contract. Even if the stipulation as to time be arbitrary, if the parties make it, it must be carried into effect; the intention must prevail. In this case, there was an express stipulation as to time. The parties agreed that the money should be paid at specified times, and if not paid promptly, the whole debt should be collected. Such was clearly the intention of these parties, and we must, as did the Court below, hold them to a literal fulfilment of it. The complainants in this bill are not therefore entitled to relief in this Court, unless the conduct of the defendant in receiving the money after it was paid, amounted to a waiver of the forfeiture of the contract. Before considering whether it was or not, it is an obvious remark, which we hasten to make, that if the principles laid down by Chancellor Kent and Baron Alderson are true, as applicable to contracts for the purchase of property, a fortiori they are true as applicable to contracts like this, which have relation to the payment of money alone. In all commercial transactions, time is of the utmost importance. Promptness in meeting engagements to pay, is the soul of commerce and the basis of credit. It is indispensable to trade. The same reasons of right and policy, which make time

Sneed and another es. Wiggins and another.

so important in agreements to pay money on promissory notes and bills of exchange, apply to this agreement.

Another remark is this; it is not necessary, in order that the defendant should resist the plaintiff's application for a specific performance, that he (the defendant) should show that he has been damaged by the complainants' default. Although not damaged, he has a right to insist upon a literal compliance; or rather the law will presume that he has been damaged. 1 Johns. Ch. Rep. 379.

In looking at this case, I am ready to exclaim, as Lord Loughborough did in Lloyd vs. Collett, " An equity arising out of one's own neglect! It is a singular head of equity!"

Still, if the defendant did in fact waive the forfeiture of this contract, that may entitle the complainants to relief in equity. We have seen that he did not waive the payment of the money at the maturity of the instalment on 1st January, 1847. The bill does not charge that he either authorized or acquiesced in the delay of payment. Nor did he do any act, after the 1st January, 1847, which can be construed into a waiver or remission of the forfeiture. His receiving the money, and giving the complainants credit for it on the judgment, does not, in our opinion, amount to a waiver. That belonged to him with or without a forfeiture of the contract. Nothing short of a new contract could restore the complainants to the benefits of the contract which they had lost, and that was not made. There was nothing for the defendant to do, which, if done, or which the complainants had omitted to do, which, if permitted still to do, could restore them. We repeat, that nothing short of an express undertaking, on the part of the defendant, could restore the complainants to the benefits of their broken contract. They show no equity, and are not entitled to the injunction prayed for.

Let the judgment of the Court below be affirmed.

Tedlie vs. Dill.

No. 15.-EDWARD H. TEDLIE, plaintiff in error, vs. JOHN DILL, defendant in error.

[1] If judgment is entered against joint defendants, when one of them is dead at the time, the judgment shall be reversed for error as to all of them.

Motion to set aside judgment. Before Judge WARREN. In Baker Superior Court. June Term, 1847.

The said Edward H. Tedlie, with William P. Tedlie, and Jesse B. Tedlie, were sued jointly, by John Dill. The said Edward H. and William P. were served with process, and a return of, “not to be found," was made by the officer as to Jesse B. Pending the suit and before judgment, the said William P. died. Dill, the plaintiff below, proceeded in the case to final judgment against the said Edward H. and William P., as though the said William P. was in life. No notice whatever was taken of his death.

The above motion was made on the ground that the action being joint as well as the judgment, and being bad as to one, it should be reversed as to all. The Court below overruled the motion, and the counsel for Tedlie excepted.

H. J. DEVON, for the plaintiff in error, cited, Schley Dig. 246, (n. q.) 290; Prince, 422; 3 Black. Com. 394, n. 14; 3 Bacon Abr. 99, 68, 106, 115; 4 Hen. & Munf. 439; 1 Chit. Pl. 44.

JONES & CARITHERS and R. F. LYON, for the defendants in error. By the Court.-LUMPKIN, Judge, delivering the opinion.

John Dill brought an action of.assumpsit, in the Superior Court of Baker County, against Edward H., William P., and Jesse B. Tedlie. Service was perfected on two of them, to wit: Edward H. and William P. Tedlie, and the sheriff returned, "not to be found," as to the other defendant, Jesse B. Tedlie. William P. Tedlie died before the case was docketed, but no notice was taken thereof upon the record, and judgment was taken at the regular term against both of the defendants who were served.

At June Term, 1847, of Baker Court, a motion was made before the presiding judge, to set aside the judgment as erroneous, upon