#### Benjamin Longley *et al. versus*Amos Cotting.

By an indenture the plaintiffs assign to the defendant a lease of land for a hundred years, and covenant to erect a house upon the land by a day specified. The defendant covenants, that provided the plaintiffs shall faithfully perform their covenants, he will pay to them $1000, one third thereof when they shall have done certain parts of the work, and shah have caused insurance to be made on the house for $1000, payable to the defendant in case of loss; one third, when they shall have done other parts of the work; and the remaining third when the house shall be finished. The plaintiffs give to the defendant, at the time of making the indenture, their promissory notes, amounting in the whole to $ 1000, payable, at different periods, to the defendant or order, with interest payable quarter-yearly, but he is not to claim interest except on the money actually advanced; and the plaintiffs covenant, that in case they shall fail in the performance of any of their covenants, they will forthwith repay the whole amount advanced to them, on demand with interest- They also covenant to fulfil all the covenants in the lease assigned; and it is agreed, that the leasehold premises are assigned as collateral security for the fulfilment of the plaintiffs’ covenants, and that in case they shall fail in the performance of the covenants, or if the notes or interest thereon shall not be punctually paid, it shall be lawful for the defendant to cause the leasehold estate to be sold, and with the proceeds to reimburse himself for his advances, accounting to the plaintiffs for any surplus. The defendant paid the plaintiffs one instalment, but the work which was to be performed before the payment of the second and third instalments not being done until after the day specified for the completion of the house, he refused to pay those instalments. It was held, that *time*was of the essence of the contract, and that an action by the plaintiffs to recover the second and third instalments could not be sustained.

*Held*also, that the contract was not an overreaching bargain on the part of the defendant.

This was an action of debt, in which the plaintiffs declared upon an indenture made between the parties on the 23d of February, 1829. The declaration also contained counts for money paid, money had and received, and for goods sold and delivered, and work and labor performed.

By the indenture the plaintiffs assign to the defendant and his assigns, all their interest in a parcel of land leased to them by David Sears for the term of one hundred years from February 17th, 1829, together with the lease, and warrant the same against all persons claiming under either of the plaintiffs. They covenant that they will build on the land a dwellinghouse, with suitable out-buildings, in the manner specified in the indenture, all the materials to be furnished at their expense, and that they will complete the same on or before the 1st day of June, 1829-The defendant covenants, that provided the plaintiffs shall *335faithfully perform their covenants, he will pay to them $ 1000; one third thereof when they shall have dug the cellar, framed the house, &c. and also caused insurance to be made on the house for seven years for the sum of $ 1000, payable to the defendant in case of loss ; one third more when they shall have lathed and plastered the house and painted the same, &c. ; and the other third when the house and out-buildings shall be finished and ready for occupancy. The plaintiffs agree to give to the defendant, at the time of making the indenture, their joint and several notes, payable to the defendant or order, six of them for $ 100 each, payable respectively in one, two, three, four, five and six years, and two of them for $ 200 each, payable respectively in seven and eight years, each note to be on interest from the date, the interest to be paid quarter-yearly ; but the defendant is not to claim interest except on the money actually advanced by him, and from the time the advances are made. The plaintiffs covenant, that in case they shall fail in the performance of any of their covenants, they will forthwith pay to the defendant the whole amount he shall have advanced to them at that time, on demand with interest. They further covenant to fulfil all their covenants in the indenture between them and Sears, and to indemnify the defendant and his assigns from any liabilities they may be under to Sears, as holding under the indentures. It is also agreed, that the assignment of the leasehold estate is made to the defendant as collateral security for the fulfilment of the plaintiffs’ covenants, and that in case they shall fail in the performance of the covenants, or if the notes or the interest thereon shall not be punctually paid, it shall be lawful for the defendant or his assigns, after waiting ninety days from the time of the default, to cause the leasehold estate to be sold and assigned ; after giving due notice of the sale in one of the Boston newspaper^, and after deducting from the proceeds of the sale the expenses thereof, together with the amount then d jp to the defendant for his advances with interest, the surplus, if any,.is to be paid over to the plaintiffs or their assigns ; and if the proceeds are not sufficient to pay the amount so due, the plaintiffs engage to pay the balance remaining due, with interest, on demand.

The defendant pleaded several pleas, on some of which *336issues were joined to the country ; and on opening the cause, the indenture, with an indorsement thereon of the payment of the first instalment, was given in evidence. It was then admitted that the plaintiffs had fulfilled all their covenants, except that the painting was not done on or before the 1st of June, and the house and out-houses were not finished on that day, but were finished by the 19th of September, when one of the plaintiffs moved into one part of the house, which he continued to occupy ; the other part remained unoccupied. On this last day, one Shaw, of the firm of Shaw & Darling, who claimed .to be assignees under the plaintiffs and to whom the first instalment had been paid by the defendant, gave notice to the defendant that the house and out-houses had been completed, and demanded of him payment of the second and third instalments, but the defendant declined making any further payment.

If the Court should be of opinion that the defendant was liable on his covenants, or in this action, to pay the second and third instalments or either of them, he was to be defaulted ; otherwise the plaintiffs were to become nonsuit ; it being admitted that Shaw and Darling were the real plaintiffs.

Aylwin, for the plaintiffs,

contended that *time*was not of the essence of the contract, for that the defendant did not rely upon the covenant to finish the buildings by the 1st of June, but took other security for his advances, namely, eight negotiable notes, an assignment of the leasehold estate, and the right to sell the same and reimburse himself out of the proceeds, accounting to the plaintiffs for any surplus. The indenture contains no clause of redemption, and there is an express covenant to indemnify the defendant against any demand of rent by* Sears. Under these circumstances it would work great injustice to hold that the completion of the work by the 1st of June was a condition precedent. *Pordage*v. *Cole,*1 Saund. 320, note 4 ; *Kingston*v. *Preston,*cited in 2 Doug. 689 ; *Terry*v. *Duntze,*2 H. Bl. 389 ; *Gardiner*v. *Corson,*15 Mass. R. 503.

This is an overreaching bargain, and the Court will hold that debt lies for the materials found and the work performed by the plaintiffs. The indenture contains no provision in favor of the borrowers of the money. There is no covenant to reconvey to them, nor to permit thém to occupy until there shall be a breac h *337of the covenants on their part. *Chesterfield*v. *Jansen,*1 Atk. SOL

*Nichols,*for the defendant.

The contract was for a loan of money, upon a condition precedent, to be performed before the 1st of June. *Littler*v. *Holland,*3 T. R. 590 ; *Porte*v. *Shephard,*6 T. R. 665 ; *Johnson*v. *Reed,*9 Mass. R. 78*, Langworthy*v. *Smith,*2 Wendell, 587 ; *Jewell*v. *Schroeppel,*4 Cowen, 566 ; *Bank of Columbia*v. *Hagner,*1 Peters. 465. The defendant was not to be held during his life to make the loan, but be provides that if there shall be a failure hy the plaintiffs to perform their covenants, they shall pay back the money they shall have received, with interest; which implies that the defendant is not to advance money after such a failure. Taking the whole instrument together, it is manifest that upon the money’s being repaid, the notes were to be given up. It was proper that the plaintiffs should indemnify the defendant against the lease to Sears, for lie had become liable to Sears for the rent. The assignment of the lease was only collateral security for the payment of the notes. The property was mortgaged, with a right to redeem at any time. *Parks*v. *Hall, 2*Pick. 210; Com. Dig. *Mortgage, A*and *B;*Metcalf’s Yelv. 179, note ; *Cortelyou v. Lansing,*2 Caines’s Cas. 206 ; *Yates*v. *Hambly,*2 Atk. 359 ; *Brown*v. *Bement,*8 Johns. R. 76.

There was no overreaching on the part of the defendant. By the contract important benefits are secured to the plaintiffs. If the defendant had unwarrantably transferred the notes, he would have been liable on his covenants. A mere tender of the defendant’s first payment and interest would have put an end to the contract

*Per Curiam.*

e Court cannot see any fair ground to sustain the action. The covenant of the defendant is, that he will advance the sum of $ 1000, to enable the plaintiffs to erect a house on their own land, that is, land of which they took a long lease from Sears. One instalment was paid, and the second was to be paid when certain parts of the work should be done, and the third when the house should be finished, which was to be on or before the 1st of June. The plaintiffs contend that the time is not essential, but we think it is made so by the *338terms of the indenture.1 There is no evidence of a parol contract t0 enLrge the time.

The plaintiffs cannot recover on the general counts, for the work was done upon their own house. The transfer of the property to the defendant was merely as security. No injury has been done to the plaintiffs. They have finished the house, having procured money from some other quarter, and they pay interest to the defendant only upon the sum advanced by him The plaintiffs call this a catching bargain, which a court of equity would set aside ; but it does not appear to us to be of that description. The lender demanded ample security for his money, and the only ground of complaint seems to be that he required too much. He may have been over-cautious, but there is nothing fraudulent on his part.

*Plaintiffs nonsuit.*

1

 Time may be an essential part of an agreement, either from the nature of the transaction, or the subject matter of the agreement, or by the express undertaking of the parties. *Shaw*v. *Turnpike Company, 2*Pennsylv. R. 454. Time becomes material where delay diminishes the value of the thing contracted for in an agreement. *Bellas*v. Hays, 5 Serg. & Rawle, 427. See *Decamp*v. *Feay,*5 Serg. & Rawle, 323; *Young*v. *White,*5 Watts, 460; *Dana*v. Mason, 5 Vermont R. 368.