Greathouse

On the twenty-fourth day of November, 1920, the plaintiff entered into a written contract with the defendant whereby the plaintiff agreed to level and grade a forty-acre tract of land owned by the defendant. The grade was to be such that water would flow thereon in certain specified directions. The plaintiff agreed to furnish at his own cost all labor, material, teams, machinery, appliances, and outfit for the work; to begin work not later than ten days from the date of the contract, and to fully complete and finish the same not later than January 1, 1921. Upon failure of the contractor in any material or substantial respect to perform any covenant or agreement contained in the contract, it was stipulated that the owner might at his option terminate the agreement, and that in such event the contractor should have no claim for any work theretofore done by the contractor. It was further provided that time is of the essence of the agreement and of each covenant thereof.

This is an action by the contractor to recover damages for breach of the contract in the manner stated in the complaint. It is alleged in the complaint: “That on the day of the execution of said agreement there was…