The Montgomery advertiser., 1903-08-16
r1JIrNwTpER V. ROWAN Ct al.

EBLENWlDEH V. ROWAN et ai. Action to Reccver Damages for Breach of !
 Confract for Sale of Land.--Appeal
 from City Court of Admission.
 F Option, definition thereUf.--An op- f;on Ss a contract by which the owner of property Agrees with another that he shall have the light to buy the property at . nxed price within . certain designated lime; and time Is always of the essence ok said contract.
 option; contract for sale of land; when shown to exist.-When an option Is &tren for the purchase of land upon Consideration which is merely nominal compared to the purchase price, and with ln the time specified for the exercise of tho option the purchaser pays nearly one hzlf rf the purchase price, and on the hack of the option the owners of the land acknowledge the receipt of said sum lon account Of the purchase price named in the within option" stating the amount paid by the purchaser on account of the purchase money, and further stipu- latss in said writing that in consideration of such payment the vendor agrees to extend the time for the payment of the balance of the purchase money for a pe- xiod of twelve months from this date with interest thereon at per cent per annum." and further agrees that the said purchaser may at any time pay the bal ance of the purchase money with interest then due,'' and that upon such payment being made, the vendor would execute the titles according to the terms of the option, such last agreement is declara- ton on the part of the purchaser to ex- ercise his option and constitutes com tract for the sale of the lands at the price therein stipulated. without any element of an option contract In it.
 8 Same: same; same: when contract not unilateraL-When the owner of land gives an option of purchase thereof and .<ts1. kt~ n4al Fxxp klaa. rn4. else of the option, the purchaser pays g substantial portion of the purchase price, ana thereupon the owner acknowledges receipt of the payment of the rart of the purchase price, and agrees that in con- alteration of said payment he will extend of the purchase money for designated period, and further agrees that the nur- chaser may at any time pay the balance of the purchase money with interest, and that upon such payment the owner will execute conveyance of title to the pur- chaser. and the second agreement is sisned only by the owners of the land and not/by the purchaser, but is executed by the purchaser. such second agreement Is not unilateral.
 AContract for sale of land; when con veyance independent and no condition precedent.--Where contract for the sale of land is entered Into and substantial part of the consideration iJ paid by the purchaser any covenants and undertak- fngs in said contract are independent and not conditions precedent.
 5. Same: same; what necessary tu main tain action--In the execution of a contract for the sale of land where a substantial part of the consideration Is paid and actually received by the vendor, and the covenants or stipulations refer only to a part of the consideration, and a breach on the part of the purchaser may be cop- peHsateG in damages, ar action may be maintained by such purchaser against the vendor to recover damages for the breach of said contract, without averring per- fermance by the plaintiff
 G. Contract: when time ia of the es- sence thereof.-Time is not of the essence af the contract unless 1t is so expressly stipulated by the parties or it necessarily follows from the circumstances of the particular case.
 Contract; waiver of forfeiture.-There may be the waiver of the foreflture of @ contract without consideration or as mat ter of estoppel; if there is conduct from which 1t may be reasonably implied that it was not the purpose of the parties to insist upon a forfeiture.
 Reversed and remanded. Opinion by Haralson, J.
 FIDELITY MUTUAL LIFE INsUR-
 ANCE co. V. BATSON. Admrx.
 Action Upon Life Insurance Policy .--Ap-
 peal from City Court of Bessemer.
 1. Action upon life insurance policy: sufilciency of replication.-In an action upon a life insurance policy where. by special plea the defendant ayers that in the contract of insurance it was a condi- tioi precedent to the policy becoming a binding obligation that the first premium should be paid, and that as a matter of fact the first premium was not paid by the insured, but instead thereof he gave his note therefor payable to the agent of the defendant, and that such note was never paid at maturity, but was dishon- ored and has never been paid, and that. therefore, the contract of insurance waa avoided. replication to such plea which ayers that the note given by the assured for the first premium was not the proper ty of the defendant and was not given to 1he defendant in payment of said first premium in violation of any rule or coll-