The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1873-09-26

are entitled to have the enjoyment Of tho
farther contract s; to supply the city With
sas1ev5. The 5olduo. % ::ss de:saasr:
is.p s.predioated upon denial Of hesplain-
tract. In the resolution of the Council
OF September 8. 1879, they say, In re-
ply to plaintiffs communication OF Au-
gust o. that the plaintiffs shave failed
entirely in the performance Of said CON.
traot, thereby disregarding the neees.
sity and endangering the prosperity OF
the corporations" and thereupon re.
solve, "that the City Council is absolyed
from all obligation to fulfill the said
contract, and in it's behalf, the said City
Council refuse to comply with the cove.
nants on its part therein contained. -
See Ass. Copy Of Council Proceedings.
On the 12th November, 1872, the City
Council, in reply to the plaintiffs com
munioation Of the 11th November,
wherein the defendant was informed
that on the 21st November. the plaintiffs
would he prepared to furnish, and would
furnish, the city with its supply Of
water, re-affirm their action of Septen.
Der 8, and state that "although there
may have been binding contract be.
tween the parties previous % the 21st
day of August last, 1872, that then and
after that, the same became null and
void as to the city of Columbia, by rea.
son OF the failure Of the said Samuel A.
Pearce, Jr., for himself and as trustee OF
Wm. Sprague, to comply with the terms
l, hi - ~
of the City Council, MS we'll as from the
contents Of the testimony offered by de-
fendant. and from the argument OF de-
fendant's counsel, it is seen that the de-
NAL of the plaintiffs right to the enjoy
ment of this contract is predicated on
these grounds, to wit:
l. Upon the ground, that the plain.
tiffs have forfeited their contract, by
reason of non performance within the
two years.
2. Upon .the ground, that they have
failed entirely in the performance" of
the contract thus emitting the defend
ant to treat the agreement Us a nnllity.
3. Upon the ground, that the contract
has not been performed by the parties
with whom tho defendant contracted.
The first of these grounds proceeds
upon the assumption that the limita-
ton OF two years, within which the
additional works were required TO be
constructed, was ''of the essence of the
contract, in such sense us to entitle the
defendant to treat the contract as a
nullity because not performed within
the time limited. Although this point
appears not to have been insisted on in
the argument, it is nevertheless proper
to give it some consideration.
Tho general rule in equity is that
"time is not the essence of contract. "
1t is said, however, that "parties may
contract on what terms they will, and
may declare, if they think fit, that it
shall be so considered" or "time may
be implied as essential in contract
from the nature of the subject matter
with which the parties are dealing"
adams Equity. D. IS. Fry on Spec.
Performance, s713.
To make the time to be O matter OF
essence, it is, however. not enough that
time is fixed within which certain
thing shall be done. ,''In order to rem
der time thus essential, it must be clearly
aud expressly stipulated that it shall be
SO. Fry on Spec. PERT. 2712. 1.-The
mere fact that dizzy has been specified
for completion, will not per Sc render it
essential. "-Aoams' Equity. No. 8S.
CONCLUDED IN OUR NEXT.