Derrett v. Bowman

Robinson, J., delivered the opinion of the Court. On the 7th of May, 1878, the appellant, by contract in writing, agreed to sell to the appellee, ten acres of land, ■at twenty-five dollars per acre. On the same day, the appellee gave his note with Eli Warner as security, for the purchase money, and took possession of the property. He immediately began to ■clear the land, and sowed part of it in grain.

Afterwards he laid a stone foundation for a dwelling-house, and continued in possession, until May, 1879, when, during his ■absence, the appellant entered and took possession of the land. This is a bill by the appellee as purchaser, to enforce a ■specific performance of the contract of sale. The defence of the appellant rests on two grounds. First, the failure of the appellee to pay the purchase money on the day it was due ; and secondly, his voluntary ■surrender of the property.

As to the first, the mere non-payment of the purchase money on the day it was due, would not in itself deprive the appellee of his right to insist on the specific performance of the contract, for the reason that in a case like this, time is not ordinarily of the essence of the contract, the payment of interest in the meantime being considered ■as a compensation to the vendor. In some cases, time may be material, for instance where there is an express stipulation between the parties to that effect; or it may be so «considered from the nature and character of the property ■sold, and the object and purposes of the vendor and vendee. Then again one may lose his right to a specific performance, by gross laches and unreasonable delay in paying the purchase money. Taylor vs. Longworth, et al., 14 Peters, 172 ; Pratt vs. Carroll, 8 Cranch, 471 ; Seton vs. Slade, 7 Vesey, 265; Halsey vs. Grant, 13 Vesey, 73, and Hipwell vs. Knight, 1 Younge & Coll., Ex.

C., 401. But there is nothing in this case to exempt it from the operation of the general rule. ⁵²⁹ But apart from this there does not appear to have been any default on the part of the appellee; the purchase money was due on the 5th