Certain terms, though unexpressed, are imported into the contract by law without proof that they were intended by the parties. Unless a contrary intention was expressed, the law conclusively presumes that they intended to make them a part of their contract. "The unexpressed obligations in these instances, which are implied by law, are those which are inherent in the transaction according to its true nature, and may be regarded as the unexpressed intention of the parties. * * * It is generally said that contracts will be construed according to the intention of the parties. But this means, not only what they did actually intend, but also what, according to the essential nature of the particular transaction, the law considers that they should have intended. No intention can, however, be read into a contract unless it is thus a necessary legal implication. * * * When a particular kind of contract is made, it is presumed that the parties intended to embody all the legal consequences of the act, whether they knew of them or not, unless it can be seen from the language they used that they intended to exclude some of them." 3
This principle is illustrated by an ordinary contract of sale. In all such contracts, in the absence of expression to the contrary, it is conclusively presumed that the seller intended to stipulate that he had the title to the proprety and the right to sell it. These implied stipulations are frequently called "implied warranties." Though unexpressed, they are imported into the contract by implication of law.*
On the other hand, however, "the law will not make a contract for parties which they have not made themselves, or imply agreements which have no foundation in necessity, and which it cannot be supposed that persons of ordinary prudence would have included in the contract." 5
trie Co. v. Board of Com'rs, 83 Minn. 262, 86 N. W. 332. See "Contracts" Dec. Dig. (Key-No.) § 163; Cent. Dig.§ 745.
3 Brantly, Cont. 178, 179; Genet v. Canal Co., 136 N. Y. 593, 32 N. E. 107S, 19 L. R. A. 127; Rioux v. Brick Co., 72 Vt. 148, 47 Atl. 406. -See "Contracts," Dec. Dig. (Key-No.) § 167; Cent. Dig. § 750.
4 El Paso & S. W. R, Co. v. Eichel & Weikel (Tex. Civ. App.) 130 S. W. 922, 935. See "Sales," Dec. Dig. (Key-No.) § 266; Cent. Dig. §§ 748-759.
5 Barnes v. American Brake-Beam Co., 238 111. 582, 87 N. E. 291, 294, per Cartwright, C. J. And see Caverly-Gould Co. v. Village of Springfield. 83 Vt. 396, 76 Atl. 39. See "Contracts," Dec. Dig. (Key-No.) § 168; Cent. Dig. § 751.
221. At common law, time is always of the essence of a contract; but in equity it is otherwise, unless it was intended by the parties to make time of the essence, and their intention is expressed or to be implied. In the absence of such intention, the rule is that a reasonable time was meant. In some jurisdictions, by statute, the rule at law is the same as in equity.
When the contract fixes no time for performance, the contract is to be construed as allowing a reasonable time.6 What is a reasonable time is a question to be determined in view of all the circumstances which may have been supposed reasonably to have been in contemplation of the parties.7
Where the contract fixes a time 'for performance, the time, at common law, is always of the essence of the contract; that is to say, if a person promises another to do a certain thing by a certain day, in consideration that the latter will do something for him, the thing must be done by the date named, or the latter is discharged from his promise. Courts of equity, however, look further into the intention of the parties, so as to ascertain whether, in fact, the performance of the contract by one party was meant to depend upon the other party's promise being fulfilled by the day named therefor, or whether a day was named merely in order to secure performance within a reasonable time. If the latter was found to be the intention of the parties, equity would not refuse to enforce the contract if the promise required to be so performed was performed within a reasonable time.8 And it may be stated as a general rule that a court of equity will not treat time as of the essence of a contract, unless it affirmatively and clearly appears that the parties so regarded it.9 It is always open to the parties, however, even in equity, to make time of the essence of the contract.10 In some of the states, even where time is expressly declared to be of the essence of the contract, courts of equity will disregard the stipulation if its enforcement would be unconscionable.11
6 Ellis v. Thompson, 3 Mees. & W. 445; Pope v. Manufacturing Co., 107 N. Y. 61, 13 N. E. 592; Boyd v. Gunnison, 14 W. Va. 11; Griffin v. Ogletree, 114 Ala. 343, 21 South. 488; Rogers v. Burr, 97 Ga. 10, 25 S. E. 339; Eppens, Smith & Wiemann Co. v. Littlejobn, 164 N. Y. 187, 58 N. E. 19, 52 L. R. A. 811; Kelley, Maus & Co. v. Hart-Parr Co., 137 Iowa, 713, 115 N. W. 490. See "Contracts," Dec. Dig. (Key-No.) § 212; Cent. Dig. §§ 944-955.
7 Ellis v. Thompson, 3 Mees. & W. 445; Pinney v. Railroad Co., 19 Minn. 251 (Gil. 211); Stange v. Wilson, 17 Mich. 342; Coon v. Spaulding, 47 Mich. 162, 10 N. W. 183; Stewart v. Marvel, 101 N. Y. 357, 4 N. E. 743; McFadden v. Henderson, 128 Ala. 221, 29 South. G40. See "Contracts," Dec. Dig. (Key-No.) § 212; Cent. Dig. §§ 944-955.
8 Maltby v. Austin, 65 Wis. 527, 27 N. W. 162; Bellas v. Hays, 5 Serg. & R. (Pa.) 427, 9 Am. Dec. 385; Moote v. Scriven, 33 Mich. 500; Andrews v. Sullivan, 2 Gilman (111.) 327, 43 Am. Dec. 53; Garretson v. Vanloon, 3 G. Greene (Iowa) 128, 54 Am. Dec. 492; Taylor v. Baldwin, 27 Ga. 438, 73 Am. Dec. 736; Thurston v. Arnold, 43 Iowa, 43; Austin v. Wacks, 30 Minn. 335, 15
In England, and in some of our states, the distinction in this respect between the rules of law and equity has been swept away by statutes declaring, substantially, that stipulations in contracts as to time or otherwise, which would not theretofore have been deemed as of the essence of such contracts in a court of equity, should receive in all courts the same construction and effect as they would have received in equity.12