Armstrong v. Pierson

Woodward, J.

Whilst I concur in the result arrived at in this cause, I wish to say, that some of the. views suggested in the reasoning — and which enter into the reasoning of most of the cases — do not command my concurrence. The point upon which I wish not to be concluded by any of the cases, including the present, is the effect given to, and the use made ofj the proposition, that “ time is not of the essence of a contract, in equity.” This is often taken to mean, practically, that time is of no consequence, and that the vendee may perform pretty much when he pleases. The idea is not thus plainly expressed, but such is the practical and real effect of the views taken. These views represent that the parties must positively make time of the essence, expressly providing for forfeiture in case of non-performance.

*336As at present informed, I believe the true doctrine to be, that time is always a part of the contract, and to be observed, unless the vendee shows an excuse — a reason— why he should not be held to it. The books mean only what they say — that time is not so of the essence, that it cannot be dispensed with, whereas, a large number of the cases are decided, (lightly, and without due reflection,

' as I think), upon the ground that it is of no importance, unless expressly and emphatically made so, and thus throwing the burden upon the vendor, instead of the vendee, where it belongs. This view leads off into wrong reasoning, and to wrong conclusions. I desire to hold myself free on this subject, in any future cause in which it may properly arise, and not to be precluded by cases in which it may be touched arguendo only, but which do not turn upon it.

The subject is somewhat touched upon in Usher v. Livermore, 2 Iowa, 118, but it was not directly called for, and it would have been forced, to enter upon it at length in that case. In Gillis v. Matthews, 1 Iowa, 242, I appended a brief note on this point. In Young v. Daniels, 2 Iowa, 127, nothing is said. To my view, these cases stood fairly upon other grounds. In Brink v. Morton, I had been of counsel, and took no part. A note to this effect, was omitted through mistake. In Frank v. Purrington, post, also I was of counsel, and have not read the opinion, and consequently make no comment. It would be interesting to pursue this subject into the examination of cases, but the duties of the court are too pressing to allow the indulgence.