Mathews v. Smith

13 Del. 22

• Court: Superior Court of Delaware
• Decided: November 15, 1887
• Status: Published

Opinion

Comegys, C. J.,

charged the jury:

Cited the contract under which the soda-water apparatus was sold by the plaintiffs to Colquhoun. Conditional contracts, did not originate in this State, and had only been recognized by the court here after considerable hesitation. A strict construction had been placed upon them whenever brought before the court, because they were considered dangerous, the danger arising from their secrecy. This arose from the fact that there was no possible way by which the public might be made aware of the position occupied by property involved so far as its actual ownership was concerned. The law in all cases protects a bona fide purchaser. When under the terms of one of these conditional contracts the vendor has a right to proceed and enforce it, that right must be exercised within a reasonable time. The vendor cannot lie by, but must resort to his remedy within the passing of the first term of court subsequent to the failure of payment, or at least by the second term after the default has been made., In the case under consideration fully nine months had elapsed after default of payment on the last note and upon this ground the defendants are entitled to a verdict.