CONTRACTS. TIME OF THE ESSENCE OF A CONTRACT. Continued.
from the nature or structure of the contract. Time may be of the
essence as to any one or more of the terms of the contract. Miller
v. Rice et al. 315.
8. The materiality of time may be implied when hardship will
result from considering time immaterial, as, when delay in per-
formance would involve one of the parties in serious liability or
loss; or where the subject matter of the contract is, from its nature,
subject to considerable and frequent variations of price; or where
the object of the contract is a commercial enterprise, and the prop-
erty purchased, whether land or goods, is for the prosecution of
trade; or when the contract is for the purchase of property for im-
mediate use, as of a house, with the intention of immediately occu-
pying it as a residence; or when the contract contains stipulations
in favor of one party, and not of the other, or is in anywise unilat-
eral, and in a great variety of other cases involving similar equitable
principles. Ibid. 315.
9. A letter containing an offer to sell land, concluded with a
clause for the making of a deed "as soon as the above terms are
complied with, but not later than ten days from the date hereof,
except at the option of the undersigned:" Held, that such clause,
if it had not been modified, would have made time of the essence
of the contract. Ibid. 315.
10. But when the person to whom the offer of sale was made,
objected to the clause limiting the time for his performance to ten
days, the proposition to sell was modified by a subsequent letter, so
as to give a reasonable time for examining the title, etc., which was
accepted: Held, that the offer was to convey the land to the de-
fendant upon his compliance with the terms proposed, but not later
than the expiration of a reasonable time for the examination of the
title, etc., and that time was material. Ibid. 315.
11. Notice to perform—within a fixed time-extension of time by
agreement. Where time is not originally made of the essence of a
contract, such provision may be in effect engrafted upon the con-
tract when there has been unnecessary delay or default in perform-
ance, by notice from the other party insisting upon performance
at a fixed time, which is a reasonable time, under the circumstances
of the case. Ibid. 315.
12. The vendor and purchaser not having closed their contract
for the sale of land by making deed and payment, the vendor ten-
dered a conveyance and demanded payment, and the purchaser,
being unable to pay on that day, asked until noon of the following
day to get the money, and agreed that if, at that time, he was un-
able to perform, he would surrender his rights under the contract
and execute a quitclaim deed to the vendor. The latter thereupon
TIME OF THE ESSENCE OF A CONTRACT.
Continued.
served upon him a notice to pay by noon of the following day, and
that upon failure to do so his rights under the contract would ter-
minate: Held, that as the time for performance named in the notice
had been expressly assented to, the reasonableness of the notice
could not be fairly questioned. Miller v. Rice et al. 315.
13. If the purchaser of land agrees with the vendor, in consid
eration of the postponement of the time of payment until the next
day at noon, that if he fails to perform at that time he will abandon
and surrender his rights under the contract, or, in other words, will
assent to a rescission, such agreement will be binding, and on his
failure to perform at the time fixed, his assent to the rescission will
become operative. Ibid. 315.
SERVICES RENDERED TO THIRD PERSON.
14. A person engaged another to take care of a third person in
his sickness, to furnish medicines, medical attendance, and pay
all necessary expenses incident thereto. These services being ren-
dered, and expenses incurred and paid, as agreed should be done,
the person so employed would have his action therefor against the
one so engaging his services, to recover for the services rendered
and for the money expended in the execution of the purpose of the
employment. Waldron et al. v. Alexander, 30.
15. Limited by contract. See CARRIERS, 1 to 5.
CONSIDERATION.
16. Sufficiency-settlement and release of a demand. See CON-
SIDERATION, 1.
17. Changing terms of contract—consideration. Same title, 2.
REDEMPTION FROM SALE UNDER MORTGAGE.
18. Agreement for redemption or re-purchase—extension of time—
validity of agreement. See REDEMPTION, 2.
19. Contract in aid-void. Betting money on a horse race is gam-
ing, and in violation of law, and a contract in aid of the offense of
gaming is prohibited by statute, and void, and no recovery can
be had on it. Shaffner v. Pinchback, 410.
20. So where two persons contribute money, to be used by one
of them for the purpose of betting or wagering the same on horse
races, or if they are partners in the business of betting on horse
races, and the money advanced by the plaintiff to the defendant is
in furtherance of such business, the plaintiff can not recover of
the defendant any money so contributed or advanced. Ibid. 410.
21. And generally, where persons engage in an unlawful busi-
ness, as, betting on horse racing, so that they are in pari delicto, the
CONTRACTS. BETTING ON HORSE RACE. Continued.
law will not assist either one, but leave them where they have placed
themselves. Shaffner v. Pinchback, 410.
GAMING CONTRACTS.
22. Evidence. See EVIDENCE, 3.
AS TO COST OF PARTY-WALL. See PARTY-WALL.
1. In the construction of deeds and other written contracts it is
the duty of the court to ascertain the intention of the parties, and
that intention must control; but in arriving at the intention, effect
must be given to each word, clause or term employed by the par-
ties, rejecting none as meaningless or surplusage. Mittel et al. v.
Karl et al. 65.
2. A construction which requires the rejection of an entire clause
of a deed is not to be admitted except from unavoidable necessity;
but the intention of the parties, as manifested by the language em-
ployed in the deed, should, as far as possible, be carried into effect.
Ibid. 65.
DEED TO HUSBAND AND WIFE.
3. Of the estate conveyed-for life, with remainder in fee to sur-
vivor. A husband and wife, being the owners of land, in 1875 con-
veyed the same to a trustee, who by warranty deed reconveyed to
the wife and her husband by name, and to "the survivor of them,
in her or his own right:" Held, that the husband and wife did not
take as tenants in common, but an estate for life, with a contingent
remainder in fee to the survivor. Ibid. 65.
4. Presumption. Where a deed, after its signing and acknowl-
edgment, remains in the grantor's possession until after the death
of the grantee, there will arise a prima facie presumption that the
deed was never delivered. McElroy v. Hiner et al. 156.
5. What will constitute a delivery. To constitute a sufficient de-
livery of a deed no particular formality need be observed. A deed
may be delivered by words without acts, or by acts without words,
or by both acts and words; but there must be something answering
to one or the other, or both of these, with an intent to give effect
to the deed. Ibid. 156.
6. Delivery to a stranger. Doubtless a delivery of a deed by the
grantor to a stranger having no authority to accept it for the
grantee, would be a valid delivery, provided the grantee should
afterward accept the deed; and such acceptance by the grantee
44-133 ILL.
CONVEYANCES. DELIVERY OF DEED. Continued.
might be shown by implication. But to make a delivery to a
stranger effectual, the intention with which the delivery was made
must be expressed at the time. McElroy v. Hiner et al. 156.
7. Delivery after grantee's death. Where the maker of a deed re-
tains its custody and possession until after the death of the grantee,
the fact that the widow of the grantee obtains the deed and places
it on record will not give validity to the instrument. There can
be no valid delivery after the grantee's death. Ibid. 156.
8. As expressed in a deed-not conclusive. See CONSIDERA-
TION, 3, 4.
SUBSEQUENTLY ACQUIRED TITLE.
9. To whom it may inure-deed by married woman. See GRANTOR
AND GRANTEE, 1.
1. The essence of a corporation consists in a capacity, first, to have
perpetual succession under a special name in an artificial form;
second, to take and grant property, contract obligations, sue and be
sued by its corporate name as an individual; and third, to receive
and enjoy, in common, grants of privileges and immunities. The
first two describe the franchises which belong to the corporators;
the last, those which belong to the corporation. Snell et al. v. City
of Chicago et al. 413.
2. Under special charter—granting perpetual succession. Where
the legislature, before the adoption of the present constitution, by
a private act, constituted certain corporators a body corporate and
politic, under a given name and style, and provided that by that
name they should have perpetual succession, and the right to sue
and be sued, it was held, that the grant of perpetual succession
was an incorporation for an unlimited period of time, and that so
long as the corporation lasted it could exercise the powers conferred
upon it. Ibid. 413.
SALE OF CORPORATE FRANCHISE.
3. Priority of right to buy—under a statute. An act amendatory
of the charter of a plank road company provided that the supervis-
ors of the county might purchase the franchise, property and im-
munities, "and should said county fail to purchase the same, any
person or persons may purchase the same and thereby make the
same private property:" Held, that the object was to give the county
the prior right to purchase, and the right of others to purchase was
conditioned upon the failure of the county to purchase. In such
CORPORATIONS. SALE OF CORPORATE FRANCHISE. Continued.
case, the county could not be said to fail to purchase without notice
to it of the resolution of the company to sell. Snell et al. v. City
of Chicago et al. 413.
4. Sale of franchise-as working a dissolution of the corporation.
It is a general rule, that when the charter of a corporation, or its
franchise to be a corporation, is transferred or sold, there is a sur-
render or abandonment of the old charter by the corporators. The
effect of such a sale or transfer is the same as though the old corpo-
ration was dissolved and its franchise surrendered to the State.
Ibid. 413.
5. An act amending the charter of a plank road company author-
ized the president, by the advice and direction of a majority of the
stockholders, to sell the "property and immunities" of the company
to Cook county, if its debts were all paid, or to any other party or
parties, and thus dissolve said company and divide the avails among
the stockholders: Held, that the legislature intended that a sale,
when made, should operate to dissolve the corporation. Ibid. 413.
6. In what the franchise consists-power to make a transfer of it
-and of the rights which accrue to the purchaser. The right of per-
sons to become a body corporate, with right of perpetual succession,
is the franchise of the corporators; and where the same act granting
this gives the corporate body the right to construct and maintain
a toll-road and build toll-houses and collect tolls, these will be
franchises of the corporation. The former franchise, that is, the
franchise to be a corporation,-can not be transferred without ex-
press provision of law pointing out the mode in which the transfer
is to be made. Ibid. 413.
7. Where a corporation is expressly authorized by law to sell
and convey its franchise, immunities and property, and the mode
of sale is defined, and such sale is made as directed, then, although
the word "franchise" in the law is broad enough to include the fran-
chise to be a corporation, with the power of perpetual succession,
yet the purchaser will not thereby be made a corporation under
the old charter, but he will merely be vested with the right to or-
ganize as a corporation. Ibid. 413.
8. The franchise of becoming and being a corporation in its
nature is incommunicable by the act of the parties, and incapable
of passing by assignment, or by the law of descent. Ibid. 413.
9. An amendment to the charter of a plank road company author-
ized the company to sell and convey its franchise and property,
and provided that the purchaser should "enjoy all the rights and
privileges enjoyed by said company, and no more:" Held, that
this provision should be strictly construed in favor of the public
and against the grantee of the privilege. No rights passed to the
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