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 nature of the property concerning which the contract is made may show that time was of the essence of the contract. If the property is one of fluctuating values, time is ordinarily looked upon as of the essence,1 such as a contract for the sale of mineral land,2 or a contract for the sale of realty during a "boom" for purposes of speculation,3 or stock in a corporation.4 If, on the other hand, the value is not fluctuating, time is ordinarily supposed to be not of the essence of the contract in equity. A contract for the sale of realty is ordinarily a contract of which time is not of the essence,5 such as a contract to take up certain mortgages on realty, sell it and apply the proceeds to a certain debt,6 or a contract to release a right of way to a railway company.7 However, time was held to be of the essence of a contract by which A agreed to convey to B, by a certain time, a right of way for a street railway across A's land, and a franchise therefor, in consideration of which B agreed to construct such street railway.8
4 Jennings v. Bowman, 106 S. Car. 465, 91 S. E. 731.
5 See Sec. 2109.
6 See Sec. 2111.
7 See Sec. 2112.
8jennison v. Leonard, 88 U. S. (21 Wall.) 302, 22 L. ed. 639.
1 Waterman v. Banks, 144 U. S. 394, 36 L. ed. 479; Hardy v. Ward, 150 N. Car. 385, 64 S. E. 171; Axford v. Thomas, 160 Pa. St. 8, 28 Atl. 443.
2 Waterman v. Banks, 144 U. S. 394, 36 L. ed. 479; Olympia Mining & Milling Co v. Kerns, 24 Ida. 481, 135 Pac. 255.
3 Myers v. League, 62 Fed. 654, 10 C. C. A. 571.
Contra, Tapp v. Nock, 89 Ky. 414, 12 S. W. 713.
4 Umfrid v. Brooks, 14 Wash. 675, 45 Pac. 310.
5United States. Secombe v. Steele, 61 U. S. (20 How.) 94, 15 L. ed. 833; Ahl v. Johnson, 61 U. S. (20 How.) 511, 15 L. ed. 1005.
California. Beverly v. Blackwood, 102 Cal. 83, 36 Pac. 378.
Oregon. Frink v. Thomas, 20 Or. 265, 12 L. R. A. 239, 25 Pac. 717.
Pennsylvania. Hoffman v. Ry., 157 Pa. St. 174, 27 Atl. 564.
West Virginia. Watson v. Coast, 35 W. Va. 463, 14 S. E. 249.
A party to a contract who has delayed performance to speculate upon the change in value of the property contracted for, and tenders performance after the value is so changed as to make performance especially advantageous to himself, can not have specific performance.9 Thus delay till the title is cleared and the land has risen in value from twenty-two dollars an acre to eighty dollars an acre, prevents specific performance.10 Conversely, delay which does not result in a change in value does not of itself defeat specific performance. So if the depreciation in the value of the land occurs before the time fixed for delivering the deed, delay does not prevent the vendor from obtaining specific performance.11
Time is not of the essence of a contract to print and deliver certain books by a specified time;12 nor is it of the essence of the right of the insured under his policy to demand a paid-up policy in case of lapse.18