Burks

On August 8, 1887, the defendant executed and delivered to the plaintiff a contract, the material portions of which, so far as this case is concerned, are as follows: “Received of J. H. Burks one thousand dollars, in purchase of option to buy the undivided one third of [certain lands particularly described]; said option to be from this date to the first day of September next. .... In case said purchase is made during the time above mentioned, the amount this day received is to be deducted from first payment; but in case the said purchase is not made in said time, then the amount this day received shall be forfeited, and no part of said option money is to be returned. Time is the essence of this contract.” The court found that at the time of the transaction the plaintiff understood that the defendant was the owner of an undivided one third of the lands referred to in the agreement, and that the remaining two thirds were owned by others, and being desirous of purchasing the whole of the lands, had concluded an agreement with the other parties respecting their interest, substantially the same as the one above referred to, of all of which defendant had actual notice; but, as a matter…