Although there is no express provision in a contract which makes time of the essence, the contract taken as a whole and construed in connection with the surrounding facts and circumstances, may show that the parties intended that time should be of the essence of the contract, and if such intention appears, full effect will be given to it.1 If the provision with reference to time is not a covenant for the breach of which an action will lie, if it deals with nothing other than the payment of money, and if the parties apparently intend that the contract shall not be in effect if compliance is not had with such provision, time is to be regarded as of the essence of such a contract.2 A provision in a contract of partition for paying for any excess of land, if shown by a survey within a specified time, makes such time of the essence of the contract,3 at least if the contract provides that in case of the failure to make such survey the area as provided in the contract shall be taken as conclusive.4 The nature of the property with which the parties are dealing,5 is to be considered in determining whether the parties intend to make them of the essence of the contract. For like reasons, and as special applications of the general principle, time is regarded as of the essence of subscriptions,6 and of options;7 while it is regarded as not of the essence of subsidiary provisions. The fact that the vendee under a contract of sale has gone into possession of the realty and that the use which he is making thereof is such as to depreciate the value of the realty permanently, as by taking and carrying away the part of the realty which gives it its substantial value, tends to show that the time which is fixed for the payment of the purchase price is of the essence of the contract.2

240, 25 Pac. 350; Woodruff v. Water Co., 87 Cal. 275, 25 Pac. 354; Bennett v. Hyde, 92 Cal. 131, 28 Pac. 104.

4 Florida. Chabot v. Park Co., 34 Fla. 258, 43 Am. St. Rep. 192, 15 So. 756; Asia v. Hiser, 38 Fla. 71, 20 So. 796.

Illinois. Miller v. Rice, 133 111. 316, 24 N. E. 543; Burnap v. Sharpsteen, 149 111. 225, 36 N. E. 1008.

Indiana. Boldt v. Early, 33 Ind. App. 434, 104 Am. St. Rep. 255, 70 N. E. 371.

Massachusetts. Barnard v. Lee, 97 Mass. 92.

Nebraska. Foster v. Ley, 32 Neb. 404, 15 L. R. Al 737, 49 N. W. 450.

New Jersey. King v. Ruckman, 20 N. J. Eq. 316.

New York. Hatch v. Cobb, 4 Johns. Ch. (N. Y.) 559.

Ohio. Kirby v. Harrison, 2 Ohio St. 326, 59 Am. Dec. 677.

Oregon. Frink v. Thomas, 20 Or. 265, 12 L. R. A. 239, 25 Pac. 717.

5 The Lucile Manor, 70 Fed. 233.

1 United States. Owen v. Giles, 157 Fed. 825, 85 C. C. A. 189; Meier Dental Manufacturing Co. v. Smith, 237 Fed. 563, 150 C. C. A. 445.

Kentucky. Monarch v. Owensboro City By., 119 Ky. 939, 85 S. W. 193.

New Jersey. Roche v. Hiss, 84 N. J. Eq. 242, 93 Atl. 804.

South Carolina. Jennings v. Bowman, 106 S. Car. 455, 91 S. E. 731.

West Virginia. Adams v. Guyandotte Valley Ry. Co., 64 W. Va. 181, 61 S. E. 341.

2 Adams v. Guyandotte Valley Ry. Co., 64 W. Va. 181, 61 S. E. 341. A provision to the effect that in case of default in receiving installments the entire principal shall become due, makes the time of paying such installments of the essence of the contract. Roche v. Hiss, 84 N. J. Eq. 242, 93 Atl. 804.

3 Jennings v. Bowman, 106 S. Car. 465, 91 S. E. 731.