Sec 891

Unless, also, punctuality goes to the substance of an engagement, a failure to keep time is waived by an acceptance of the goods or services; and if the promisee has sustained any loss by the delay as to time, he must prove it as a matter of set-off, or use it to sustain a cross-action, as the local practice may require.6

Forfeiture from lapse of time cannot be exacted by dilatory party.

Punctuality waived by acceptance.

1 Gardner ex parte, 4 Y. & C. Ex. 503; Taylor V. Longworth, 14 Pet. 172; Rogers V. Saunders, 16 Me. 92; Eastman V. Plumer, 46 N. H. 464; Benedict V. Lynch, 1 Johns. Ch. 370; Merritt V. Brown, 6 C. E. Green, 401; Johns V. Norris, 7 C. E. Green, 102; see generally supra, sec 312, 325, 603.

2 Hudson V. Bartram, 3 Madd. 440; Wood V. Bernal, 19 Ves. 220; McMur-ray V. Spicer, L. R. 5 Eq. 529; Webb V. Hughes, L. R. 10 Eq. 281; cited Leake, 2d ed. 850; Flagg V. Dryden,.

7 Pick. 52; Benedict V. Lynch, 1 Johns. Ch. 375; Lounsbury V. Bank, 46 Conn. 291; Leaird V. Smith, 44 N. Y. 618; Bass V. White, 65 N. Y. 565.

3 Lounsbury V. Beebe, 46 Conn. 291.

4 Gee V. Pearse, 2 De G. & Sm. 325.

5 Leake, 2d ed. 850; Alley V. Des-champs, 13 Ves. 225; Heaphy V. Hill, 2 Sim. & S. 29; Eads V. Williams. 4 D. M. & G. 691; Pollard V. Clayton, 1 K. & J. 462.

6 Benj. on Sales, 3d Am. ed. sec 320; Lucas V. Godwin, 3 Bing. N. C. 737;.

As we have just seen, also, continued negotiations, after a failure in punctuality, waive the laches;1 and so of any form of acceptance after breach.2

Sec 892

Even when time is not on the face of a contract essential, it may become so by one party notifying the other that it is essential that a thing required to be done by the contract should be done on a particular day, supposing that this notice is reasonable.3 But the notice, to have this effect, must be unequivocal, and must declare that the contract will be abandoned if not performed on that day.4 And when a contract provides that the promisor shall perform his promise on notice from the promisee, then notice is essential to the maturing of the duty.5 sec 893. Obligatory documents, including negotiable papers, bonds, and deeds, are presumed to have been delivered on the date they bear.6 But extrinsic evidence is admissible to prove that the date either of execution or of delivery is not that set forth in the document.7 And the presumption does not extend to third parties.1 When there is no date, the time of execution and delivery is provable by parol; but where there is no parol proof, the instrument (e. g., a bill of exchange) dates from the day in which it is drawn.2 And when a thing is to be done "ten days from the date," and the contract is not executed until twenty days after date, then the time of the execution of the contract will be taken as the starting point.3

Time may by notice be made essential.

Nominal date presumed to be real.

Lindsey V. Gordon, 13 Me. 60; Warren V. Mains, 7 Johns. 476; Church V. Feterow, 3 Pen. & W. 301; Choice V. Moseley, 1 Bailey, 136; Lawrence V. Dougherty, 5 Yerg. 435; Miller V. Mc-Clain, 10 Yerg. 245. For waiver of conditions, see supra, sec 602-4.

1 Webb V. Hughes, L. R. 10 Eq. 281; and cases cited supra, sec 890.

2 Flagg V. Dryden, 7 Pick. 52; and cases cited supra, sec 890.

3 Leake, 2d ed. 851; Dart, V. & P. 418; Taylor V. Brown, 2 BeaV. 180; Benson V. Lamb, 9 BeaV. 502; Parkin V. Therold, 16 BeaV. 59; Nott V. Ric-card, 22 BeaV. 307; McMurray V. Spicer, L. R. 5 Eq. 527; Crawford V. Toogood, L. R. 13 Ch. D. 153; Barnard V. Lee, 97 Mass. 94; Ives V. Armstrong, 5 R. I. 567; King V. Ruckman, 5 C. E.Green, 316;. S. C, 6 C. E. Green, 599; Thompson V. Dullas, 5 Rich. Eq. 370.

4 Reynolds V. Nelson, 6 Madd. 18 see Webb V. Hughes, L. R. 10 Eq 281.

5 Hodsdon V. Harridge, 2 Wms. Saun. 62 a, n.; see fully, snpra, sec 567 et seq.

6 Wh. on EV. sec 977; Leake, 2d ed. 844; Hunt V. Massey, 5 B. & Ad. 902 Sinclair V. Baggaley, 4 M. & W. 312 Anderson V. Weston, 6 Bing. N. C. 296; Fowler V. Melville, 11 How. U. S. 375; Smith V. Porter, 10 Gray, 66 Costigan V. Gould, 5 Denio, 290; Liv-ingston V. Arnoux, 56 N. Y. 518 Claridge V. Klett, 15 Penn. St. 255; Meadows V. Cozart, 76 N. C. 450.

7 Wh. on EV. sec 977; Butler V. Mountgarrett, 7 H. of L. C. 633; Hall V. Cazenave, 4 East, 477; Cooper V. Robinson, 10 M. & W. 694; Sweetser V. Lowell, 33 Me. 446; Clark V. Houghton, 12 Gray, 38; Draper V. Snow, 20 N. Y. 331; Serviss V. Stock-still, 30 Oh. St. 418.