The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1873-09-27
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Water Questione-COnclude

n isAJud16 rCAffeMtSEsS uccisloay ON the z
~ Water Question.-.Concludc
An examination 81 the authorities on
this pointNill show that time issin no
case deemed essential ins snoh sense %
to entitlS 2 parsy!to disaffarm the con-
tract. unless-1. It was expressly stipn.
lated that the time should be essential.
Q. Or the essentially is implied from
the nature of the subject matter with
which tho parties dealt. 8. Or is made
essential by reason of injuries sustained
by reason Of the enon-performance within
the time.
These principles are fully recognized
by decisions in our own State. to which I
need not refer at large. In Doar us.
Gibbes. Bailey, E., page 371. it is said
"Time is not usually OF the essence Of a
contract, but may become 80. if the de-
lay is injurious. In Ssrter rs. Gordon,
I Hills Oh, page 126, it is said: "To be
sure, great aud long-oontinued nom
performance will, in some instances in
which circumstances are greatly
changed. be construed into an abandon
ment OF the bargain. This, however, is
rare, and takes place only when the
conduct of the parties indicstes the in
tention to abandon the contract, or the
delays have produced great Injury to the
one seeking to get rid of the contract. f"
There is. in this connection, still an
other principle to be noted, to wit:
That in cases where it is not expressly
stipulated that the time shall be essen
tial, or where it is not essential from the
worry nature of the subject matter, if a
party intends to rely upon it as essen
tial, he must give to the other party
reasonable notice of such purpose, and
aot promptly upon the non-compliance.
Fry on Spec. Peyc., Sec. 724, etc. "Time
may be always made material by either
''party, if he chooses. Either may de-
mand performance on the stipulated
day; and if the other do not then COM
ply, may elect to rescind, which recision
will free him from the obligations Of the
contract in law and equity autho-
rifles in Note 1, Adams Equity, page SS.
Jy7h Am. Edition. "But If time is to be
considered OF the essence of contract,
the point must be made promptly
See Adams Equity, page 88, Note I.
In Thomas ads. Woodruff, 2 Spear
LdW, 148, the Limitation of time within
which the work was to be dOne-dig
ging we'll not insisted on by the
defendant at the moment of it's expira-
tion; he suffered the plaintiff to CONT
nue. digging the we'll for nearly two
months afterwards. This was waiver
of the Limitation. It is further held,
that the notice thus to engraft time into
the contract must be express, distinct
and unequivocal. Thus q notice that
ono party would consider the non-per.
formance by certain day as equivalent
to refusal to perform the contract
would then be considered as rescinded.
Fry. SzQ8. The time specified by tho
notice must be long enough for the pro-
per doing OF the things required to be
done, and if it be not SO, the notice will
fail in engrafting time into the essence
of the contract. Fry. S724.
10 apply these principles: 1t is not
asserted that by express stipulation the
time of two years was made of the
essence of this contract; nor can it be
assumed that from the very nature of
the contract the time was matter of
essence; nor that it became 80 by reason
of injury caused. Neither is it averred
that by any timely and reas enable no.
tice, the defendant has engrafted the
time into the essence of the contract.
On the contrary. not only was there no
suoh notice given prior to the expira.
ton of the time, or at the moment of it's
expiration, but not until the Sd Sep
tenber, was there given to the plaintiffs
any intimation Of a purpose to disaf1irm
the contract because of it's non per-
formance. On the contrary, the plain
tiffs were constructing their works all
this time, with the knowledge and su-
pervision Of the defendant.
But without pressing this inquiry fur
ther. it is manifest. from the very face
of tho contract. that tho parties did not
regard the limitation of two years as a
material or essential element Of the con.
tract. On the contrary, having in view
the contingency of failure in this re-
gard, they agreed to insert penalty for
such failure, to bn paid to tho defend
ant. provided that the plaintiffs should
not, within thrco months after such
failure, "be in readiness to comply with
the terms OF the contract. a fair and
reasonable construction of the ngree.
ment points this stipulation to the con-
tract to supply tho city with water, and
Imports an extension of the time of two
years, within which extension, if the
Plaintiffs should be in readiness to
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