Case Stated by Bullitt and McDonell. undated

Case stated by Bullitt & McDowell Big Stone Gap Wise Co. Va

Terni Law for (...) & [Contract] Authorities

As to the right of the vendor to make time "of the essence of the contract" by giving notice that he will rescind in default of payment on a day named.

"Even when a precise adherence to time is not provided for by the terms of the original bargain, either party will be entitled to notify the other, of his intention to insist on the punctual fulfilment of his stipulations and to rescind it if they are not fulfilled. And when this course has been adopted by one who has been guilty of no default, and who tenders a [??] performance on his side, as the equivalent for the demand made on the other, equity will regard a failure on the part of the latter, as prima facie if not conclusive bar to specific performance." 2 Miss. Insts. 895 (top); [??] [??] in Eq. V2 P2 n 33 citing Braishier vs. Gratz 4 Wheat. 528 Hatch Cobb. 4 Jones ch. 559: Bowles v Woodson, 4 Grat. 75; Booten v. Scheffer 21 Grat. 474-491

The right of vendor to determine the contract by an express notice that he will consider it at an end unless the default of the vendee is made good by an immediate payment was also held in Rogers vs. Saunders 16 Marine 92. (33 Am. De. 635). Hatch vs. Cobb 4 Johnsons Chancery 559; [Bennington?] vs. Israel 7 Ohio; Jackson vs. [Ligien?] 3 Leigh 161, 188" if 33 see also Higly vs. Whitaker 8 Ohio 198

[At margin: Moon - Kelly Matter Authorities]

See also King vs. Wilson 6 Reav. 126; Heaphy vs. Hill 2 S & S 29 (1 Eng. Ch.). Watson vs. Reid 1 Russ & (...) 226 (5 Eng Ch); Taylor vs. Brown 2 Beav. 183. Berry v. Armistead 2 Keen (15 Eng Ch). 227.

[Diversity?] where vendor has been in (possession?) lapse of time (shd?) [Instly?] no (bar?) to (...) performed at his (...). (...) (...) (...) 426 & n(13). Miller v. Bean. 3 Paige 4 (...) (...) v. Taylor. 1 M (...) 395. T s 14 Pet. 172. (...) v. (...), 9 Johns. 452 [Williams?] v. Lewis, 5 Leigh 686.

Giving notice to perform shortens [time?] so that in one case 2 yrs delay in [filing?] bill for (...) perf. (...) another one held to [include?] the intervention of the ct. (...) (...) (...) 425-6 Hea(...) v. Hill 2 Sims. & (...) (1 Eng. (...)) Watson v. [Rind?], 1 (...) & My. (5 Eng. (...) 236.

(...) tho not of [essence?] of the contract is a circumstance of (...) & is to be viewed in all its probable effects & (consequences?). Anthony v. (Leftwich?), 3 Rand 252 & (...).

A purchase was to be completed 25 Ocxt. Before that day arrived the purchaser at vendor's request, extended the time to 5 Nov. But the title was not then completed. Held that the purchaser might abandon the contract. (Perkins v. Thorold. 2 Sim. N. S. (42 (Eng?) (Ch?)). 5 (...), 1 & n (1).

Contract made 16 Oct. 1840, objections to title discussed to 20 Augt. '41. When purchaser notified vendor that he wd. rescind the contract, but finally allowed vendor until 17 Jany "42 to complete the title, & the title not being compl(eted?) purchaser fell back on a (...). Bill filed by vendor, 30 August 1843. Hold that the delay from 17 Jany 1842 to 30 Augt. 1843, (...) sp. (...).

Tendency of cts. in modern cases to restrict its jurisdiction when time has not been regarded to cases where plt has been prompt in seeking his (...). South(...) v. Bish. of Exeter, 6 Hare (31 Eng. Ch),, 218-19 & note [1]. Stewart v. Smith, Id. 222 Taylor v. Longworth, 14 (...) 172 Walker v. Jeffreys, 1 Hare (23 Eng. Ch.) 348, Sir Jno (...)

Circumstances may prove that time was of the essence & the contl. where the value of the subject matter is fluctuating, as in the case of (start?) of a public house or (govt?) (...). (...) v. Till, 1 Russ. (1 Eng. Ch.) 376; Doloret v. Rothschild, 1 (...) (...) (1 Eng. Ch.) 590. Good & (...)

Discussion of effect of time in Green v. Covilland 10 Cal. 317 (70 Am. Dec. 730 (...) 139 nots.

In Rogers v. Saunders 16 (...) 107 (33 Am. Dec. 635) 4 (...) (...) to stocks in fluctuating value (& so?) essential. to also (...) (...) in Hepburn v. [Aula?], 5 Cr. 279