#### James Stinson, Plaintiff in Error, *vs.*H. L. Douseman, Defendant in Error.

ERROR TO THE DISTRICT COURT OP RAMSEY COUNTY.

The complaint of the Plaintiff below set forth that on the 7th day of February, 1854, the said Plaintiff entered into a written agreement with the Defendant, James Stinson, to convey. to him, by warranty deed, Lot 1 in Block 18, in Bice *&*Irvine’s addition to St, Paul, upon the performance of certain conditions by the said Defendant, to wit: To pay to the Plaintiff the sum of eight thousand dollars, as follows: $2,000 on the first day of September, 1854, with interest from date at ten per cent, per annum; $2,000 on the 7th day of February, 1856, and $4,000 on the 7th day of February, 1858, with interest at ten per cent, per annum from date of agreement, payable annually; aud also, to keep the buildings on said lot insured for $1500, in some good insurance company, and to have the policy of insmance made payable, in case of loss, to said Douseman; and to pay all taxes that should be assessed on said premises, from May 1st, 1853. It was further provided, that in case of failure in the performance of either of the covenants of the said Stinson, the said Douse-man should have the right to declare the contract void, and to recover all the interest which should have accrued upon the contract up to the time he should so declare it void, as rent, for the use and occupation of the premises; to take immediate possession thereof, and to regard the persons in possession, as tenants holding without permission.

The complaint then states that the Defendant did not, on the 1st September, 1854, or at any time previous, pay the Plaintiff $2,000 with interest, according to the contract, or any part thereof; that he did not have the buildings on the lot insured for $1500, in a good insurance company, and the policy made payable, in case of loss, to the Plaintiff; that he did not pay ,all the taxes assessed on said premises, from the first of May, *3261853; and that he had entirely failed to perform any of the-covenants and agreements on his part to be performed according to said contract.

That the Plaintiff, on the 14th of September, 1854, had declared the said contract void, by notice in writing: which notice set forth the reasons why the same was so declared void, to wit: on account of the non-performance of the covenants on his (Defendant’s) part to be performed, as above mentioned; that said notice was duly served upon the Defendant by mail; and that the Defendant was indebted to the Plaintiff for all the interest which had accrued on said contract, from the date thereof until the 14th September, 1854, to wit: in the sum of $481 16,- — for which sum the Plaintiff demands judgment.

The Defendant’s answer admits the execution and delivery of the contract, and, in answer to the allegation in the complaint, to the effect that he had not paid the sum of $2,000 and interest on the 1st day of September, 1854, he says:

*First.*That on the 7th day of February, 1854, at Prairie du Ohien, in Wisconsin, he (Defendant), at the request of the Plaintiff, for the payment of said sum and interest, executed and delivered to Plaintiff his (Defendant’s) negotiable note, dated on that day, whereby he promised to pay the Plaintiff' or order $2,000, on the 1st day of September 1854, with interest, at the rate of ten per cent, per annum from date, and which note was then and there accepted by Plaintiff, for the payment aforesaid, due September 1st, 1854.

*Second.*That, before the maturity of this note, the Plaintiff appointed N. Corwith *&*Co. of Galena his agents to receive payment thereof when due, and sent said note to them for collection ; that, by an arrangement with the Plaintiff, said note _was to be paid to said Corwith *&*Co. by a draft of Thomas Stinson, of Hamilton, Canada, the father and agent of Defendant, payable to order of said Corwith & *Co.;*that said Thomas Stinson, on behalf of Defendant, on the 21st day of August, 1854, drew his draft on B. K. Swift, at Chicago, for the sum of $2,138 75, and, at the request of Plaintiff, forwarded the same by mail to said Corwith & Co. having first made arrangements for the acceptance and payment thereof, and having reason to-*327believe that lie bad funds in tbe bands of said B. K. Swift to meet tbe same; that said draft was duly received by said Cor-with & Co. at Galena, as agents of tbe Plaintiff, on tbe 25th day of August, 1854, and by them, with tbe consent of said Plaintiff, used and appropriated in their individual business as bankers; that on tbe 28th of August, tbe draft was presented at said Swift’s office for payment, but owing to tbe absence ot said Swiff and bis principal clerk, payment was refused by mistake, and on tbe same day tbe draft was protested for nonpayment ; that, on tbe 1st day of September, 1854, said Cor-with & Co. .returned said note to Plaintiff, although tbe same bad not matured, nor bad said note been dishonored; that Tbomas Stinson was not notified of such protest until tbe 7th day of September, whereupon be forwarded to tbe Plaintiff at Prairie du Chien, for tbe payment of said note, another draft, upon Messrs. "Ward & Co. New-York, for tbe sum of £530, *2s. 4/1.*currency; that tbe same reached Prairie du Chien on the 11th of September, before tbe commencement of this action and prior to tbe date of tbe notice set forth in said complaint; that said last named draft was returned to said Tbomas Stinson on or about tbe 25th day of September, but without objection as to tbe character, amount or value thereof.

*Third.*Tbe Defendant further states that be was always ready to pay said note, from tbe maturity thereof, and still is; and that be tendered tbe full amount thereof to tbe Plaintiff on tbe 12th day of October, 1854, before tbe commencement of this action *•*and that be brings tbe money into court, &c. • and that said note is still outstanding against him.

*Fov/rth.*Tbe Defendant further states that be caused tbe buildings on said lot to be insured on tbe 21st day of February, 1854, by a good insurance company, and has kept tbe same insured ever since, for tbe sum of $1500; that on tbe 9th of October, 1854, be obtained tbe consent of said insurance company to transfer bis (Defendant’s) interest in said policy to Plaintiff, and on said day transferred said interest therein to said Plaintiff, and tendered tbe same to him, which be refused, and brings tbe same into court, &c. And avers, that said buildings bad not sustained any loss or damage by fire, nor bad tb e Plaintiff been damaged thereby in tbe premises.

*328*Fifth.*That it was the understanding and agreement of the parties to said contract, at the time of the execution thereof, that the amount thereafter to be paid by any insurance company for loss or damage by fire to said premises was to be applied by the Plaintiff as a payment *joro tanto*on the whole purchase-money, but that such stipulation had been inadvertantly omitted in said contract; and that Defendant had delayed making an assignment of said policy, for the purpose of seeing the Plaintiff to have such omission rectified.

*Sixth.*As to the allegation in the complaint concerning the non-payment of taxes, the Defendant answers: .That, on the 30th day of July, 1854, he paid the district school-tax assessed on said premises; that, on the 10th of October, he called upon the tax-collector to pay taxes for 1853, and found they had been paid by the Plaintiff on the 12th of September, 1854; that, on the 11th day of October, and before the commencement of this action, he had paid all taxes assessed on said premises for 1854; and that, on the 12th day of October aforesaid, and before the commencement of said action, he had tendered to the Plaintiff the sum of $40, for the taxes of 1853, — being full amount thereof, with interest; that Plaintiff had refused to receive the same, and Defendant now brings the same into coux’t, &e.; that, on the 26th day of October aforesaid, Plaintiff had called upon Geo. L. Becker to pay certain taxes assessed upon said property by the City of St. Paul — said Becker then being the authorized agent to receive the same — and tendered to him the amount so assessed: which he (the said Beckex’), being also one of the attorneys for the Plaintiff in this action, then refused to accept, or give Defendant any satisfaction in the prenxises. And brings such assessments into court, &c. and says that he has paid and offered to pay all taxes assessed upon said premises since the 1st day of May, 1853, and that no-loss or damage has been sustained by said premises by reason of any delay in the payment thereof; and that he has done and performed all of the covenants and agreements by him to be kept and performed in said contx’act set fox’th.

*Seventh.*As to the allegation of the non-payment of interest, the Defendant answers that he has paid all the interest due the Plaintiff by the terms of said contract, and is ready *329and willing to pay to tbe Plaintiff according to tbe terms of said contract all tbe interest accruing tbereon; and denies that tbe whole or any part of tbe interest accruing upon said contract remains due or owing from bim to Plaintiff.

Tbe Plaintiff demurred to tbe several parts of tbe Defendant’s answer as follows:

To tbe first subdivision thereof, — Because no fact is stated showing that tbe Plaintiff agreed to receive said note in payment of tbe sum due upon tbe contract, or that be did accept and receive «aid note in payment of said sum, or that tbe Plaintiff ever agreed to relinquish or did relinquish any rights under tbe said contract; and because it appears that said note remained in tbe possession of and belonged to the Plaintiff until tbe same was due — that it bad not been paid, and that tbe revocation of said contract by Plaintiff would be a bar to any action on tbe note.

To the second subdivision of said answer, — Because it does not relate to any allegations in tbe Plaintiff’s complaint in any manner, but refers to matters wholly foreign to tbe subject-matter of tbe action, and amounts to nothing more than an averment that tbe Defendant did not pay tbe sum due tbe' Plaintiff *beocmse he had n’t the money.*

To tbe third subdivision of said answer,- — -Because tbe action is upon a special contract to pay tbe Plaintiff $2,000 on tbe 1st day of September, 1854, and not that be would pay or tender $2,140 on tbe 12tb day of October, 1854, after said contract bad been declared void; and because tbe averment that tbe Defendant tendered tbe sum of $2,140, or any other sum, on tbe 12th October, 1854, is not an answer to tbe complaint for tbe breach of contract upon which tbe action is founded.

To tbe fourth subdivision of said answer, — Because tbe same is not responsive to any allegation in tbe complaint, and is an allegation to tbe effect that on tbe 14th day of .Se|>tember, 1854, and when tbe contract was declared void, tbe Defendant had utterly violated tbe provision therein in reference to insurance ; and because this action is not for damages occasioned by fire, but for interest, as rent for use and occupation.

To tbe fifth subdivision of said answer, — Because it is an *330attempt to set up an alleged verbal *“understanding”*— to add to, vary, and contradict tbe express terms of a written contract ;• and because the reasons set forth are insufficient to justify or excuse tbe violation of tbe contract, as any amount paid by an insurance company in case of loss would bave been applied by operation of law, upon tbe purchase-money for tbe property specified in tbe contract.

To tbe sixth subdivision of said answer, — Because tbe contract was declared void by tbe Plaintiff on tbe 14th day of September, 1854; and no act done or attempted to be done thereafter by tbe Defendant, under or pursuant to the contract,, in tbe exercise of bis rights derived therefrom, is any legal defence to tbe Plaintiff’s claim in this action.

And to tbe seventh subdivision of said answer, — Because tbe same is contradictory of itself and of tbe other portions of said answer.

Tbe demurrer to tbe answer was sustained in tbe District Court with leave to answer over. Afterwards, tbe Plaintiff entered bis judgment for want of an answer, and tbe Defendant obtained bis writ of Error to review tbe proceedings of tbe District Court.

Tbe following is tbe assignment of errors on behalf of tbe Plaintiff in Error:

That tbe Defendant may interpose, by way of answer, tbe equities arising in this case, and is not driven to bis action for specific performance. *La/ws of Mvn. of*1853, *p.*3, *et seq./*4 *Howard’s Pr. P.*350, *Dedriah vs. Hagsdadt;*8 *Howard’s Pr. B.*416, *Himt vs. Bodgers.*

That tbe acceptance by tbe Plaintiff of tbe Defendant’s negotiable promissory note for tbe first $2,000 specified in tbe contract, was a satisfaction of tbe contract to that amount. *OMtty on*Contracts, *pp.*769, 770, *Qth Amer. Ed.*

That tbe acceptance and conversion of tbe first draft drawn by Thomas Stinson — a third party — under tbe agreement averred in tbe answer, was a payment of said note, and tbe Plaintiff’s remedy was on tbe draft. *CMity on*Contracts, *pp.-767*— 770, and cases cited

*331That, from the time of making the contract and taking possession under it, the equitable title to the premises was in the Defendant, and could not be divested at the will of the Plaintiff, for the causes stated in the complaint. 2 *Lead. Oases in Eg.*26, *et seg.; Story’s Eg. Linds, secs.*115 — 628.

Timéis not of the essence of this contract: the principal object of the Plaintiff being to sell the property for a given sum. 2 *Lead. Oases in Eg.*19, 29; 1 McLean, 375, *Longworth vs. Taylor;*3 *McLean,*118; *14c Peters,*372 ; 2 *Hill’s Oh. Li.*121; 13 *U. S. Dig. ¶.*235, *Has.*203, 206; 13 *Eng. L. and Eg,.*116, *Pwrhin vs. Thorwald;*6 *Wheaton,*528, *Brasier vs. Gratz; Story’s Eg. Lwris. sec.*1316; 5 *Condensed B.*160, 161, 169; 3 *idem,*522 *and note ;*1 *Peters,*119; 5 *idem,*261; 6 *idem,*389 1 *Dallas,*315; 5 *Gra/nch,*262.

That even if time was of the essence of the contract, and the acceptance of the Defendant’s note was not a payment of the first $2,000 specified in the agreement, the Defendant has-shown sufficient excuse for non-performance at the day, and equity will relieve him against the accident which occasioned it. *Story’s Eg. Lwris. gyp.*717,718,771,775 — 777.

That the proviso to the contract, except the finding the rule of damages, states a mere conclusion of law, and might have-been omitted without changing the nature of the instrument or effecting the rights of either party under it. 2 *Lead. Cases-in Egwity, gp.*19, *Grayson vs. Biddle.*

If the proviso authorizes the Plaintiff to declare the contract void, and to oust the Defendant of his possession of the premises, then the omission to insure for a single day, or permitting a single dollar of the tax to remain unpaid for a single' day after it was assessed, would have the same effect: and proves it clearly to be in the nature of a penalty or forfeiture, which a court of equity will not enforce. *Story’s Eg. Lwris.*1315 — 1319; *Ohitty on Gont/racts,*863 — 865.

That, under the proviso, non-performance, at most, only renders the contract voidable, and not *ipse facto*void. [See contract.]

That if Douseman intended to declare the contract void upon Stinson’s failure to perform at the day, he was bound to do SO' at the day; and his omission so to do was an acquiescence in *332the delay, and a waiver of his right to declare it void after the Defendant had offered to pay. 2 *Lead. Gases in Eg.*30; *5*Paige, 225; 6 *idem,*107; *7 idem, 37.*

The Defendant, in any event, was entitled to reasonable notice of Plaintiff’s intention to insist upon payment at the precise day. 2 *Lead. Gases im Eg. 83,*and cases there cited; 3 *Phil. Eh.*343, 345 ; *Ohitty on Contracts, 771, et seg.*

That the acceptance by the Plaintiff of Defendant’s note,— which would not mature until after the day named in the contract for the payment of the first $2000, — even if it was not a satisfaction *pro tanto*of the contract, and Plaintiff’s conduct respecting the first draft, had a tendency to induce the Defendant to believe that the precise day was not essential and would not be insisted-on. 2 *Lead. Oases im Eg.*19, and cases there cited; 8 *Paige*423 — 600.

Where there has been a part performance, as a part payment of the purchase-money — payment of taxes, &c. and a delivery of possession to the Defendant, — -mere lapse of time, unless the delay was very great, would form no excuse to convey by the Plaintiff. 3 *Phil. Eh.*344, and cases cited; 3 *Monroe,*313, 318, 322; 4 *idem,*500, 501; 6 *Monroe,*362, 365, 368; 4 *Bill),*453, 536; 4 *J.J. Marshall,*157; 1 *Howard,*358.

In all cases where time is an essential part of the contract, and where there has been a part performance, courts of equity will enforce the contract, unless there is some evidence of either actual or presumptive abandonment. 2 *Lead. Gases im Eg.*29,30; 3 *John. Oases,*60, *Ballard vs. Walker;*2 *JDevereamxEg.*224; *1 Mnmf .*332, 333.

The failure of the Defendant to perform at the day was the result of accident or mistake, against which equity will never refuse to relieve. [See authorities on subject of specific performance.]

The Plaintiff cannot maintain this action without showing that he has sustained injury, and not then if such injury will admit of compensation. 2 *Lead. Oases im Eg.*3 *et. seg. Seaton vs. Slade;*3 *Phil. Eh.*344, 345, and cases there cited.

The mere non-payment of money at a specified day is no excuse for refusing to convey, because if an injury result from it it may be compensated by money, and a court of equity will *333decree a performance. 2 *Lead. Cases vn Eq.*IT, and cases-there cited.

That if the contract conld be declared void, the Defendant would suffer a positive injury, which cannot be compensated by any known rule of damages, and therefore it would be inequitable to allow the Plaintiff to recover in this action. 2 *Lead. Cases in Eq.*26, 31.

That the Defendant had both the ability and intention to perform his part of the contract, and was only prevented from performing by accident or mistake; and where the ability and intention both exist, equity will compel the Plaintiff to perform, unless the Defendant has been guilty of gross negligence.

That had the parties intended to have made time of the essence of the contract, they would have so declared it in the *proviso;*and naming a day for payment is merely formal, and means nothing more than that the payment shall be made in a reasonable time. 2 *Lead. Cases i/n Eq.*18; *Story’s Eq. Juris.*1360.

[The points and authorities on behalf of the Defendant in Error are not on file. ]

Emmett & Moss, and D. Cooper, Counsel for Plaintiff in Error.

Pice, Hollinshead & Becker, Counsel for Defendant in Error.

The Judgment of the Court below was affirmed.

[No opinion on file. ]