January Term, 1901.
J. Newton Fiero, for the appellant.
Marcus T. Hun, for the respondents.
In an action to compel the specific performance of a contract for the sale of real estate, time is not of the essence of the contract unless in the agreement it is clearly and expressly stipulated that it shall be so. The mere insertion in the contract of a day for its completion does not make such time the essence of the contract, and it will not be implied as essential except where the subject of the sale has a fluctuating value, or where the object of the contract is a commercial enterprise, or the delay in completion would involve one of the parties in a serious loss. When time is not by stipulation or by implication of the essence of the contract a court of equity will disregard it and decree specific performance when an action at law has been lost by default of the party seeking performance, if it be conscientious that the agreement be performed. The fact that the party may not have an action at law is a reason for a decree for specific performance. (Fry Spec. Perf. [2d Am. ed.] §§ 709, 710, 712-719; Willard Eq. Juris. [Potter's ed.] 292-294; Hubbell v. Von Schoening, 49 N.Y. 330; Day v. Hunt, 112 id. 195; Higgins v. Eagleton, 155 id. 466.)
In this case time was not of the essence of the contract ( Day v. Hunt, 112 N.Y. 194; Schmidt v. Reed, 132 id. 109; Higgins v. Eagleton, 155 id. 466), and under the circumstances of the case a decree for specific performance was properly granted.
The vendors fully complied with the rule requiring diligence, and have reasonably excused their failure to tender performance on the day named in the contract. Immediately on ascertaining from the defendant's counsel on November twenty-eighth that his examination of the title had been completed, the attorney for the vendors prepared the deed and sent it to his clients for execution, and ordinarily would have had it ready in time for delivery. Circumstances which could not have been anticipated caused a brief and unavoidable delay in its execution, and the attorney used more than ordinary diligence to have it executed in time. There was never at any time any intention manifested on the part of the vendors to abandon the contract, but, on the contrary, a desire was shown for its performance. Nor did the defendant at any of the interviews on and after December first, when informed of the cause of the delay, raise any objection, but, on the contrary, acquiesced therein until December fourth, when, without any warning, he summarily demanded the delivery of the deed to him and announced his intention to "withdraw." The attorney for the vendors at that time notified him that the deed had not yet been returned to him, but that he was at every moment expecting it, and on the same day, after hearing from one of the vendors in New York that the deed had there been executed by himself and wife, the attorney for the vendors immediately wrote a letter to the defendant's attorney apprising him of the fact, and that he expected the deed would be ready for delivery on the fifth.
The defendant was then in possession of the premises under the contract, and had been since the fifteenth of November, and had no apparent reason, under the circumstances, to object to the brief delay. Notwithstanding the defendant was well aware of the desire and of the diligence being used by the vendors to perform the contract, and that the attorney expected to have the execution of the deed completed on the fifth, for some reason, not consonant with good faith, he moved out of the house on that night, and on the following morning refused to accept the deed upon the ground that it was too late. To permit him thus to avoid his contract would be against all principles of equity.
The defendant concedes that he acquiesced in the plaintiffs' delay until December fourth, when he summarily demanded the performance of the contract. He could not thus relieve himself from his obligations under the agreement. It was competent for him then to fix a time within which he would insist upon the delivery of the deed or the abandonment of the contract, but the time specified by a notice of such intention must be a reasonable time, a sufficient time to enable the vendor with diligence to perform. (Fry Spec. Perf. [2d Am. ed.] §§ 722, 724, 728; Hubbell v. Von Schoening, supra; Schmidt v. Reed, supra.)
Until December fourth the defendant had by his words and conduct waived a strict compliance with the contract, and within two days after he first manifested an intention to insist upon an immediate tender of the deed, it was tendered to him and was refused.
The objection now made to the certificates of sale and the transfers of the same tendered to the defendant is without merit. First, they were a substantial compliance with the agreement to convey free from liens and incumbrances. Second, they were submitted to the defendant's attorney in charge of the examination of the title, and no objection was made to them at the time of the tender, nor to the title in any respect. Had the defendant required the sales to be canceled instead of a transfer of the certificates, it could readily, and no doubt would, have been accomplished by the vendors. The defendant having made no objection to these certificates, but having refused to perform solely on the ground that it was too late, the objection now made comes too late. ( Higgins v. Eagleton, 155 N.Y. 466.)
It may be doubted whether the court did not err in admitting, under the objection of the defendant, the testimony of Mr. Hun to the effect that he told Mr. Silberman before the execution of the contract that it would be delivered with the understanding that if he (Silberman) was not prepared to close the title, time should not be considered of importance and he should have reasonable time within which to make an examination of the title beyond the first day of December. But if this were error I think it was harmless. It was simply a promise to give the defendant's attorney further time to examine the title if he required it, and it was undisputed that it was not required by him in this case and the examination of the title was completed by him before the first of December. This testimony does not seem to have been at all material and its admission is not a ground for reversal. With this eliminated from the case, the undisputed facts are quite sufficient to support the judgment.
The judgment should be affirmed.
Judgment unanimously affirmed, with costs.