however, the deficiency in quantity or quality is essential so that the buyer would not get the substantial benefit of his bargain if specific performance were granted, the plaintiff will be denied relief.62 In England contracts for the sale of land not infrequently provide that in case of any error or omission in the plans or descriptions the sale shall not be annulled, but enforced with compensation. Even in such a case, however, if the error is material specific performance will not be decreed.63 And materiality of the error does not depend altogether on the difference in value between what is tendered and what was contracted for. "A vendor could not fulfil a contract to sell Whiteacre by conveying Blackacre, although he might prove to demonstration that the value of the latter was largely in excess of the value of the former." 64 It is not improbable

62 Hick v. Phillips, Prec. Ch. 575; Long v. Fletcher, 2 Eq. Ab. 5 pl. 4; Fordyce v. Ford, 4 Bro. C. C. 494, 497; Stewart v. Alliston, 1 Mer. 26; Collier v. Jenkins, Younge, 295; Leyland v. Illingworth, 2 De G. F. & J. 248; Drewe v. Corp, 9 Ves. 368; Stapylton v. Scott, 13 Ves. 425; Knatchbull v. Grueber, 1 Madd. 153, 3 Mer. 124; Roffey v. Shallcross, 4 Madd. 227; Dalby v. Pullen, 3 Sim. 29; Casamajor v. Strode, 2 M. & K. 706, 726; Peers v. Lambert, 7 Beav. 546; Perkins v. Ede, 16 Beav. 193; Hughes v. Jones, 3 De G. F. & J. 307; Arnold v. Arnold, 14 Ch. D. 270; Hepburn v. Auld, 5 Cranch, 262, 3 L. Ed. 96; Beck v. Bridgman, 40 Ark. 382; Lombard v. Chicago Congregation, 64 III. 477; O'Kane v. Kiser, 25 Ind. 168; McKean v. Reed, Litt. S. C. 395, 12 Am. Dec. 318; Winne v. Reynolds, 6 Paige, 407; Hinckley v. Smith, 51 N. Y. 21; Bird v. Bradburn, 127 N. C. 411, 37 S. E. 456; Buchanan v. Alwell, 8 Humph. 516; Spunner v. Walsh, 11 Ir. Eq. R. 597.

63 Arnold v. Arnold, 14 Ch. D. 270. Cf. Fawcett v. Holmes, 42 Ch. D. 150. 64 Lee v. Rayson, [1917] 1 Ch. 613 618, the court added: "Value, no doubt, is an element to be taken into

account in determining whether an error in description is substantial or material, but it is certainly not the only element, nor, in my opinion, the dominant one. A statement of Lord Eldon's, quoted by Buckley, J., in the case to which I have already referred-Jacobs v. Revell, [1900] 2 Ch. 858, 863, indicates, in my opinion, the pertinent inquiry which has to be answered. It is in Knatchbull v. Grueber, [1817] 3 Mer. 124, 146, where Lord Eldon says: 'This Court is from time to time approaching nearer to the doctrine that a purchaser shall have that which he contracted for, or not to be compelled to take that which he did not mean to have.' I take that to mean that what the Court has to do in such a case as I have here to deal with is to decide whether the purchaser is getting substantially that which he bargained for, or whether the vendor is seeking to put him off with something which he never bargained for, and in arriving at a conclusion on this question the Court is bound to consider every incident by which the property offered to be assured can be differentiated from that contracted for. If the sum of these incidents really alters the subject-matter, then the purchaser can

that the rule at law may become somewhat ameliorated and though one who still can make accurate performance will not be allowed to recover without tender of such performance, one who has already committed a breach in limine making exact performance impossible, but who can and does tender performance varying but slightly from his agreement will be allowed to enforce the agreement at law, the defendant's right of recoupment or counterclaim being regarded as equivalent to the compensation which equity requires.

§ 845. Distinction between breach as to the time of performance and as to character of performance.

When a promisor binds himself to do a particular act at a particular time, or within a particular period, his promise might conceivably be regarded either as indivisible or composed of two severable parts. On the first supposition, whether the promisor failed to do what he agreed or failed to do it at the time when he agreed, the consequences would be the same. It is, however, desirable to distinguish between a breach of promise to do a thing and a breach of promise as to the time when it shall be done, and courts of equity in England and America have treated stipulations as to time as subsidiary and of comparatively little importance, unless either the language of the parties or the nature of the case imperatively indicated that the date of performance was vital. In courts of common law, however, and especially in mercantile contracts, it is held that time is of the essence of the contract,65 and

repudiate the contract; if, on the other hand, the subject-matter remains unaffected, or so little affected as to be substantially that which was agreed to be sold, then the purchaser must be held to his contract."

5 Startup v. Macdonald, 2 Man. & G. 395 (seller contracted to deliver "on or before" a certain day. The buyer was held justified in refusing to accept after that day); Gath v. Lees, 3 H. & C. 558 (seller contracting to deliver cotton "at seller's option in August or September," and having

given notice that he elected to deliver in August, must deliver in that month, and the buyer need not accept a later delivery). Coddington v. Paleologo, L. R. 2 Ex. 193 (a contract which called for delivery to begin on April 17, justifies the buyer in repudiating the agreement if delivery is not begun on that day); Reuter v. Sala, 4 C. P. Div. 239, 249 (goods shipped in December under contract for goods of November shipment need not be accepted); Bowes v. Shand, 2 A. C. 455 (shipment chiefly in February will not satisfy a

it is important to determine the meaning and the limits of this doctrine.

§ 846. Meaning of time being of the essence.

66

When it is said that time is of the essence, the proper meaning of the phrase is that the performance by one party at the time specified in the contract or within the period specified in the contract is essential in order to enable him to require performance from the other party. It does not mean that delay will not give rise to a right of action against him. A breach of any promise in a contract, whether of vital importance or not, will do that; nor does the phrase mean merely that time is a material matter, but that it is so material that exact compliance with the terms of the contract in this respect is essential to the right to require counter performance. Even where time is not of the essence, it is generally true that an unreasonable lapse of time may be fatal. Thus time is almost always in varying degrees material but not so often an essential matter. It is obvious that in any contract one party may make his promise expressly conditional on the exact perform

several weeks, and the buyer was held justified in refusing them); McIntyre v. Cunningham, 86 Neb. 383, 125 N. W. 598 (buyer agreed to take a quantity of goods "within twelve months from May 1st." Held that the seller need not fill an order given a week after that period); Higgins v. Delaware, etc., R. Co., 60 N. Y. 553 (breach of agreement to take away in October coal bought of the defendant, held to justify refusal to deliver it the following February); Blossom v. Shotter, 59 Hun, 481, 486, 13 N. Y. S. 523, affd. without opinion, 128 N. Y. 679, 29 N. E. 145 (vessel to arrive within forty days. After the time expired, the buyer was absolved from obligation); Wilson v. Empire Dairy Salt Co., 50 N. Y. App. D. 114, 63 N. Y. S. 565 (contract for salt "to be taken within the next 60 or 90 days." The shipper was held justified in refusing to deliver after 90 days); Sunshine Cloak & Suit Co. v. Roquette, 30 N. Dak. 134, 152 N. W. 359 (contract calling for shipment Aug. 15th. Goods shipped in

September held properly rejected); Sun Publishing Co. v. Minnesota Type Foundry Co., 22 Or. 49, 29 Pac. 6; Fountain City Drill Co. v. Lindquist, 22 S. Dak. 7, 114 N. W. 1098 (contract provided for shipment on or about February 1st. A delay for forty days after that date justified the buyer in refusing to accept); Goff v. Pacific Coast S. S. Co., 9 Wash. 386, 37 Pac. 418. (In view of special circumstances, failure to pay freight on the morning contracted for, held a condition precedent to the obligation to charter a steamer.) See also General Electric Co. v. Chattanooga &c. Corp., 241 Fed. 38, 154 C. C. A. 38; cf. Woolfe v. Horne, 2 Q. B. D. 355; Kauffman v. Ræder, 108 Fed. 171, 47 C. C. A. 278, 54 L. R. A. 247; Montgomery v. Thomson, 152 Cal. 319, 92 Pac. 866; Re Canadian Niagara Power Co., 30 Ont. 185.

66 See comment on the frequent loose use of the phrase in Helgar Corp. v. Warner's Features, 222 N. Y. 449, 119 N. E. 113, 114.

ance of any agreed condition, and therefore performance on a specified day or hour, or before a specified day may be made such a condition. So that the first point to be determined in an inquiry whether time is of the essence in a particular case, is whether the parties have in terms made it so. And it is only when this question has been decided in the negative that any rule of law other than one of construction is called into play. But often the defendant has not made his promise to perform expressly conditional on the plaintiff's performance at a fixed day; he has contented himself with exacting from the plaintiff a promise of performance at that day, and the inquiry is whether a breach by the plaintiff of his promise so to perform excuses the defendant from liability. The justice of such an excuse depends chiefly on two considerations:

1. Is the delay in performance of the plaintiff's promise after part performance, or did he fail to perform at the agreed day at a time when the contract was still wholly executory? and

2. Is the nature of the contract such as to make time of vital importance?

847. A breach in limine as to time is fatal in contracts of sale.

In executory contracts to buy and sell time is of the essence in an action at law. This principle has been strictly applied at least until recent times, not only in regard to personal property, but in regard to real estate. "If A contracts to deliver a horse to B on Monday next, for which B agrees to pay $100, A can not recover by an offer to deliver on Tuesday." 67

The same principle was applied in contracts to sell real estate. Though the rule in equity was different, at law neither

67 Phillips, etc., Construction Co. v. Seymour, 91 U. S. 646, 650, 23 L. Ed. 341. To the same effect see-Coddington v. Paleologo, L. R. 2 Exch. 193; Jones v. United States, 96 U. S. 24, 24 L. Ed. 644; Oshinsky v. Lorraine Mfg. Co., 187 Fed. 120, 109 C. C. A. 38; Cromwell v. Wilkinson, 18 Ind.

365; Osgood v. Boston, 165 Mass. 281, 285, 43 N. E. 108; Clark v. Wright, 5 Phila. 439. Cf. Montgomery v. Thomson, 152 Cal. 319, 92 Pac. 866; Baltimore & Ohio R. Co. v. Carter, 133 Md. 551, 105 Atl. 760; Paton v. Payne, 35 Scot. L. Rep. 112 (H. L.).