2 West v. Murph, 3 Hill, S. C. 284; Appleton v. Chase, 19 Me. 74; Howe v. Huntington, 15 Me. 350.
3 Mill Dam Foundery v. Hovey, 21 Pick. 437; Coombe v. Greene, 11 M. & W. 480; Knight v. New Eng. Worsted Co., 2 Cush. 286.
4 See ante, § 938, as to the time when common carriers must make delivery of goods consigned through them. Also Myers v. De Mier, 52 N. Y. 647.
5 Jones v. Gibbons, 8 Exch. 920; 20 Eng. Law & Eq. 559.
6 Sawyer v. Hammatt, 15 Me. 40; Cocker v. Franklin H. & F. Manuf. Co., 3 Sum. 530; 1 Story, 332; Hill v. School District No. 2 in Millburn, 17 Me. 316; Nelson v. Patrick, 2 C. & K. 641.
7 Ellis v. Thompson, 3 M. & W. 445; Cocker v. Franklin H. & F. Manuf. Co., 3 Sum. 530; Sewall v. Wilkins, 14 Me. 168.
§ 1326. Time is not generally in equity deemed to be of the essence of a contract, unless the parties have so treated it, or unless an agreement to that effect is implied from the nature and circumstances of the contract,4 or unless the fact was ingrafted into it by notice subsequent, express and unequivocal.6 And, although courts of equity have interposed in favor of parties who were not ready to perform their contract at the stipulated time in cases where time was manifestly not essential, yet such an extension of the contract can only be granted in extreme cases, where a party has failed in consequence of some unforeseen accident, or where there are circumstances indicating a waiver by the other party of any objection.6 They will not interfere in behalf of negligence.7 Time is always considered material in cases where delay operates as an injury,8 or where the parties have expressly so treated it, or where the nature and necessity of the contract require it to be so construed.9 And a new agreement extending the time of the performance of a contract is evidence that the parties considered time as an essential feature.10 Whenever in an agreement a specific time is fixed, the burden of proof is upon the party claiming to depart therefrom to show that it is not essential.1
1 Russell v. Ormsbee, 10 Vt. 274; Warren v. Wheeler, 8 Met. 97.
2 Rice v. Churchill, 2 Denio, 145.
3 See Manvel v. Holdredge, 45 N. Y. 151 (1871). 4 Voorhees v. De Meyer, 2 Barb. 37; Wiswall v. McGown, 2 Barb. 270; Steele v. Branch, 40 Cal. 4 (1870).
5 Myres v. De Mier, 4 Daly, 343; 52 N. Y. 647 (1873).
6 Wiswall v. McGown, 2 Barb. 270.
7 Benedict v. Lynch, 1 Johns. Ch. 370; Lloyd v. Collett, 4 Bro. Ch. 469; Wiswall v. McGown, 2 Barb. 270. See, also, Mill Dam Foundery v. Hovey, 21 Pick. 417; Dickey v. Linscott, 20 Me. 453.
8 Bellas v. Hays, 5 Serg. & R. 427; Myres v. De Mier, 4 Daly, 343; 52 N. Y. 647 (1873).
9 Sneed v. Wiggins, 3 Kelly, 94; Liddell v. Sims, 9 Sm. & Marsh. 596; Tyler v. McCardle, 9 lb. 230; Edgerton v. Peckham, 11 Paige, 352; Hill v. School District No. 2 in Millburn, 17 Me. 316; Myers v. De Mier, supra.
10 Wiswall v. McGown, 2 Barb. 270.
§ 1327. Where there is any agreement as to the time when a contract is to be performed, it must ordinarily be performed within or at that time.2 Thus, if goods are sold, "to be delivered on or before" a certain day, they must be delivered according to the agreement or the vendee will not be bound to accept them.3 But although the vendee in such case might refuse to accept the goods delivered after the stipulated time, yet if he do accept them, he can only set up the delay in reduction of damages on a suit for the agreed price. So, also, where a workman agrees to build a house and to complete it by a certain day, the employer cannot, after accepting the house, refuse to pay for it on the ground that the time was a condition precedent, and, not being complied with, vacated the contract, though he might fairly reduce the price by evidence of any injury resulting to him from the delay beyond the terms of the contract.4
1 Marshall v. Powell, 9 Q. B. 779, 791.
2 An agreement to pay a certain sum of money "six months after peace is declared between the United States and the Confederate States of America" has been held to mature six months after the end of the rebellion. Brewster v. Williams, 2 S. Car. 455 (1871).
3 Startup v. Macdonald, 2 Scott, N. R. 485; s. c. 2 Man. & G. 395. If a vendor agrees to deliver goods sold " at his option in August or September, payment within ten days from date of invoice," and he gives the buyer notice that they will be ready for delivery in August, and that the invoice would be dated that day, he is bound to deliver them in August, and cannot compel the vendee to accept them afterwards. Gath v. Lees, 3 H. & C. 558 (1865).
4 Lucas v. Godwin, 3 Bing. N. C. 744. In this case the plaintiff contracted to build certain cottages by the 10th of October, and they were not finished till the 15th. Tindal, C. J., said: "The contract is for certain work to be done in Farcett Fen, and at the end of the contract the defendant agrees to pay £216 on the first of January, 1837, on condition of the work being completed in a proper and workmanlike manner on the 10th of October, 1836. As the work was to be done and the payment to be made at a time which had expired before this action was commenced, I think the plaintiff was entitled to sue on the general counts. In all such cases a plaintiff is entitled to do so unless there be something express and explicit in the contract to show a condition which goes to the whole right of action. I see none such here. If it be said tract is to be performed in a certain time after it is made, or after the day of its date, or after a day specified therein, the day on which the contract is made or dated, or the day specified is to be excluded from a computation of the time.1 If a contract is to be performed in a certain time "after the date," it is of no consequence ordinarily at what time it is executed; the time must be calculated from the date. Yet, if the circumstances manifestly indicate a different intention, it would be otherwise; as if the contract be to do work within a month from the date, and a month elapse before the contract is executed.2 If the contract be to be performed within a certain time "after the making," or " from henceforth," the time is to be calculated from the time when it is executed.3 And the date is not conclusive proof that the contract was then executed.4 If the day of performance fall on a Sunday, the contract must, in the case of bills and notes, be performed on the Saturday preceding; in other cases payment on Monday is a compliance with the contract.6