JOHN VORWERK, Appellant, v. C. A. NOLTE, Respondent, 87 Cal. 236

Fox, J.

Upon rehearing and reargument of this case, a fact is conceded which was before sufficiently apparent to be suspected, but not sufficiently so, from the record as printed here, to justify action upon it as a fact proved; viz., that the original contract between the parties was partly written and partly printed; that in preparing it, the parties had used a form printed in blank, in common use in the preparation of contracts for the sale of real property, where deferred payments were to be made; and that the words “ time is of the essence of this contract,” as found therein, was a portion of the printed and not of the written matter.

If, therefore, there is any doubt about how the contract is to be construed, the rule prescribed in

section 1651 of the Civil Code is to be applied in the construction thereof. Applying this rule, and it appearing not only that the contract was partly written and partly printed, but that the printed part was prepared without special reference to these particular parties or this particular'1 contract, the question is, whether these words so found in the printed part are repugnant to the general scope and purpose of the contract as the same appears from the original or written parts thereof. Of this we think there can be no doubt.

It is a matter of common understanding that when these words — “time is of the essence of this contract”—are used, it is with reference to future payments; that their purpose is to protect the vendor against delays in payment of the purchase price, and the tying up of his estate beyond the fixed period, without the payment of the agreed compensation therefor; and that they have no place in the contract after the full price is paid, and when nothing remains to be done but to make the conveyance.

Even where there are future payments to be made, if the time of payment is not fixed, time is not of the essence of the contract. (Day v. Cohn, 65 Cal. 508.) It is evident that in the blank used in this case, the words were inserted and used solely with reference to. the duties of the vendee, the party of the second part; for immediately after them, and in the same connection, we find the following: “ In event of a failure to comply with the terms hereof by the said party of the second part, the said party of the first part shall be released from all obligations in law and equity to convey said property,” etc.

Then, in another part of the instrument,—the written part thereof,—it is provided that the vendor, the party of the first part, shall have one year in which to make the conveyance, and it is alleged and found that this was done to enable him first to secure the cancellation of an existing mortgage, which was not then mature. By the subsequent writing, made on the same day, it was provided that if the vendor failed to execute and deliver a deed “ after one year from the date hereof,” he should return the purchase price, with three per cent per month interest thereon.

Meantime, the vendee went into immediate possession, and received the rents of the premises. The year expired June 24th. On the 29th, the purchaser demanded his deed, and three days later, which defendant testifies was as soon as he could have it prepared, he tendered the deed, duly executed. Ho ohjection was made io it that it was not properly executed, or did not convey good title. The vendee was still in possession, and had collected the rents up to a time even, beyond that of the date of the tender.

We think the deed was tendered in time, and that the defendant was not liable to an action for the return of the purchase» knoney-, with the thirty-six per cent interest money thereon, or any part thereof. The order heretofore made in this court in this cause is vacated and set aside, and the judgment and order appealed from are affirmed, McFarland, J., Paterson, J., and Thornton, concurred. Rehearing denied.