Witmer Bros. v. Weid

Citations

• 108 Cal. 569
• 41 P. 491
• 1895 Cal. LEXIS 893

Syllabus

<p>Contracts—Subscription to Street Railroad—Escrow—Rescission— Notice.—Where notes were made to secure the payment of a subscription in aid of a proposed street railroad, in consideration of the construction thereoi on a specified route passing through the land of the maker of the notes, and the notes were deposited in escrow with a third party, to be delivered, upon performance of the conditions specified in the contract, to the person constructing the road, a mere notice to the person holding the notes in escrow that the maker had rescinded the subscription contract on the ground that the terms thereof had not been complied with, without any notice of such rescission or of his intention to rescind to the person agreeing to construct the railroad, cannot operate as a rescission thereof.</p> <p>Id.—Delivery or Notes—Construction of Contract—-Time, when not OR Essence.—Where the conditions of the subscription in aid of the street railroad were that one-half thereof, represented by two months’ notes, was to be paid when the grading was done and the iron was on the ground, and the balance, represented by four months’ notes, was to be paid on the completion of the road on the first day of its operation, and the conditions upon which the notes were placed in escrow were similar, all conditions precedent, not expressly enumerated, are excluded, and an agreement in the contract that the road should be extended to a specified point “within four months, weather permitting,” not being expressly made a condition precedent, nor declared to be of the essence of the contract, is not to be construed as making the time therein specified of the essence of the contract.</p> <p>Id.—Delivery of Notes—Order of Agent—Waiver of Condition. — An agent having a power of attorney sufficient to authorize him to order the notes to be delivered may waive any condition as to the construction o£ the road within the time mentioned in the contract, by a written order that the notes in escrow should