This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The statement that time is of the essence of a contract, means that the provision fixing the time of performance is looked upon as a vital term of the contract, the breach of which may operate as a discharge of the entire contract. Accordingly, if time is of the essence of the contract, failure to perform at the time specified gives to the adversary party the right of treating the contract as discharged.1 If time is not of the essence of the contract, failure to perform at the time specified does not justify the adversary party in treating the contract as discharged.2 It is sufficient if the contract is performed within a reasonable time after that specified in the contract. The question, whether time is not of the essence of the contract, is a question of construction. When this question is determined, the effect of the failure of the party in default to perform at the time stipulated is a question of breach. The question whether time is of the essence of the contract, therefore, might be treated under either or both of the headings of construction or discharge.
8 Hammett v. Brown, 44 S. C. 397; 22 S. E. 482.
1 Bowen v. Julius, 141 Ind. 310; 40 N. E. 700.
2 Bowen v. Julius, 141 Ind. 310; 40 N. E. 700; Moore v. Kime, 43 Neb. 517; 61 N. W. 736.
3 Barbour v. Hickey, 2 App. D. C. 207; 24 L. R. A. 763.
4 Schultz v. O'Rourke, 18 Mont. 418; 45 Pac. 634.
1 Slater v. Emerson. 10 How. (U. S.) 224; McFadden v. Henderson, 128 Ala. 221; 29 So. 640; Vorwerk V. Nolte (Cal.), 24 Pac. 840; Staley v. Thomas, 68 Md. 439; 13 Atl. 53; Talbott v. Heinze, 25 Mont. 4; 63 Pac. 624; Sanborn v. Murphy. 86 Tex. 437; 25 S. W. 610; Jordan v. Coulter, 30 Wash. 116: 70 Pac. 257; Owen v. Henderson. 16 Wash. 39; 58 Am. St. Rep. 17; 47 Pac. 215.
2 Armstrong v. Breen. 101 Ia. 9; 69 N. W. 1125; University of Des Moines v. Trust Co., 87 Ia. 36; 53 N. W. 1080; Usher v. Hollister, 58 Kan. 431; 49 Pac. 525.