Hosmer v. Wyoming Ry. & Iron Co.

Citations

• 129 F. 883
• 65 C.C.A. 81
• 1904 U.S. App. LEXIS 4101

Syllabus

<p>1. Appeal — Grounds for Reversal — Multifariousness of Bill.</p> <p>An appellate court of the United States will rarely reverse a decree in equity on the sole ground that the bill was multifarious, and it will not do so where the causes of action joined are not repugnant or inconsistent with each other, and where the only loss or inconvenience to a. defendant from such joinder arises from his having been subjected to the payment of costs with which he is not justly chargeable, which can be remedied by a modification of the decree.</p> <p>2. Vendor and Purchases — Payment of Purchase Money — Time as of the Essence of the Contract.</p> <p>A court of equity will not hold time to be of the essence of a contract for the absolute sale of mining property, so as to cause the forfeiture of the rights of the vendee thereunder because of his failure to make payment promptly, in the absence of an express stipulation to that effect, and where it appears from recitals in the contract in making statement of the consideration that the greater part of the original purchase price of the property had been paid by the vendee under prior contracts between the parties for which the later one was substituted.</p> <p>3. Specific Performance — Contract for Sale of Realty — Necessity of Tender.</p> <p>When a contract evidences an actual sale and purchase of real propierty, and time is not an essential element therein, and the parties have substantially progressed with performance, the rule requiring a tender of payment by the purchaser before institution of suit for specific performance is not of imperative application, and a bill for that purpose will not be dismissed for failure to make such tender, where it appears that complainant has a substantial interest in the property, and a dismissal would work loss and inconvenience to both parties; but where the costs of the suit might have been avoided, had the tender been made, they will be taxed to complainant, although the suit is conteste