anand of the mortgagee. On the other hand should he make forcible resistance, this does not justify the mortgagor in using force to overcome his resistance. The law hardly proceeds upon the assumption that either party will violate his agreement, and that therefore a breach of the peace may arise.

The proposition that such a stipulation is valid, and that the mortgagee may take peaceable possession of the property without the consent and even over the protest of the mortgagor, is sustained by the great weight of authority. The following cases are in point: Street v. Sinclair, 71 Ala. 110; Burns v. Campbell, 71 Ala. 271; Walsh v. Taylor, 39 Md. 591; North v. Williams, 120 Pa. St. 109, 6 Am. St. Rep. 695, 13 Atl. 723; White Sewing Machine Co. v. Connor, 23 Ky. Law Rep. 1125, 64 S. W. 841; Heath v. Randall, 4 Cush. 195; Satterwhite v. Kennedy, 3 Strob. (S. C.) 457; Nichols v. Webster, 1 Chand. (Wis.) 203. Such is the rule recognized by the text-writers: Jones on Chattel Mortgages, sec. 434; 1 Cobbey on Chattel Mortgages. sec. 510; Pingrey on Chattel Mortgages, sec. 989; Boone on Mortgages, sec. 276.

The authorities relied upon in support of the proposition that the stipulation in question did not justify the taking of the property against the consent of the mortgagor, are from our own courts. The first is Loftus v. Maxey, 73 Tex. 242, 11 S. W. 272. As to the evidence adduced upon the trial, the case is meagerly reported. The petition charged that in connection with the taking the defendants threatened the plaintiff with violence and committed an assault upon her. How these allegations were sustained by the proof the report does not disclose. The court charged the jury that if the property was taken without the consent of the plaintiff, and “if the manner of defendants, or either of them, in the taking was by threats, or in an insolent, overbearing and insulting manner done in such a way as would naturally outrage the feelings of plaintiff,” then they should find for plaintiff. It was held that this charge was correct. In the opinion the court say: "We think the charge of the court to the effect that if the instrument alleged to have been executed by Salie Maxey was genuine, as asserted 179 by defendants, it furnished no justification or defense for the defendants, is correct. Without such an instrument they had the right to remove the property peaceably and with the consent of the parties having it in lawful possession, while with it they had no right to make such removal forcibly or

against the will of plaintiffs." We think in so far as the opinion asserts that a peaceable taking against the will of the mortgagor was wrongful, it is clearly a dictum. The petition alleged the taking of the property, but did not state its value; and we understand the suit was to recover damages for an assault and other insulting conduct. Judging by the report of the case the question of the right to take the property peaceably without the consent of the plaintiff was not discussed in the briefs of counsel upon either side; and, as we think, was a point not necessarily involved in the determination of the suit.

In Gillette v. Moody, 54 S. W. 35, the court of civil appeals for the fourth district held, that under a similar provision in a chattel mortgage it was unlawful to enter a house by force and threats for the purpose of taking and carrying away the mortgaged property. That is not the question certified in this case.

The case of Culver v. State, 42 Tex. Cr. Rep. 645, 62 S. W.922, was a conviction for an aggravated assault in which the court of criminal appeals held, that the fact that the assault was made in an attempt by the defendant to take mortgaged property under a like stipulation in a chattel mortgage was not a justification of the act. What is said in the opinion, to the effect that the defendant had no right to take the property without the consent of the assaulted party, was not involved in the decision of the case. Clearly, the right to take the property did not justify the assault.

So far we have not adverted to the case Harling v. Creech, 88 Tex. 300, 31 S. W. 357. In that case in answering a certified question, this court, after construing the instrument in controversy to be a chattel mortgage, said: "The instruments being chattel mortgages, the vendor had the rights of a mortgagee under a chattel mortgage containing the stipulations of right to take possession, which would be to take possession of the property if he deemed himself insecure, or the debt not being paid, and to hold or dispose of the property in the character of mortgagee, and not as owner." It is claimed by counsel for appellee that this was a dictum. Without pausing to inquire whether the remark was called for in a decision of the question there certified, we deem it sufficient to say, that if a dictum, it is in our opinion a correct announcement of the law.

Conditions in Chattel Mortgages authorizing the mortgagee to take possession, sell, or declare a forfeiture at any time he may deem himself insecure, are discussed in Nash v. Larson, 80 Minn. 458, 81 Am. St. Rep. 272, 83 N. W. 451; Newlean v. Olson, 22 Neb. 717, 3 Am. St. Rep. 286, 36 N. W. 155; Francisco v. Ryan, 54 Ohio St. 307, 56 Am. St. Rep. 711, 43 N. E. 1045. A mortgagee to whom authority is given by the mortgage to take possession of the property and sell it for the payment of his debt cannot be sued in trover by the mortgagor for so doing: Clark v. Whitaker, 18 Conn. 543, 46 Am. Dec. 337.

GARRISON v. COOKE.

[96 Tex. 228, 72 S. W. 54.]

CONTRACTS.-Time is of the Essence of a Contract when one party agrees to pay money to the other in consideration of the doing of an act by such other within the time specified. (p. 908.),

CONTRACTS-Time, When of the Essence of. If one party agrees to pay to the other a sum specified in consideration that such other will construct, equip, and operate a line of railroad and run trains between designated points on or before a day named, time is of the essence of the contract, and there can be no recovery thereon if the acts required do not take place at or before such date. (p909.)

Blount & Garrison, for the appellant.

H. N. Nelson, W. R. Anderson, J. H. Long, and J. G. Woolworth and Spencer & Scott, for the appellee.

230 GAINES, C. J. The following questions have been certified for our determination:

"In this cause, now pending before this court on motion for rehearing, we are advised that a number of other claims of a like nature growing out of the same transaction are dependent upon the result of this case, and for that reason, and because this court is not unanimous in the conclusion already reached to affirm the judgment and are in doubt as to the correctness of our judgment, we certify for your decision the questions hereafter set out.

"The facts as disclosed by the record are as follows:

"Some time in the spring of 1898, T. S. Garrison, the appellant, induced J. W. Cooke and other citizens of Carthage, Texas, to execute and deliver to him the following instruments with the amount for which each was to be bound set opposite the respective signatures:

""The State of Texas,

Panola County.

"Know all men by these presents that we and each of us whose names are subscribed below, for and in consideration of T. S. Garrison constructing, equipping and operating a line of railroad from Timpson, Shelby county, Texas, to Carthage, Panola county, Texas, and the running of daily trains between said points for the accommodation of freight and passenger traffic on or before the first day of October, 1898, agree to pay the amounts set opposite our respective names to such persons as said T. S. Garrison designates, said amounts to be paid when the road is completed and daily trains are running over same to the town of Carthage.

"J. W. Cooke

...

..$350.00*

"The time of completion to Carthage was subsequently extended by agreement of parties to November 1, 1898. The appellant proceeded with the construction of the proposed road, which was known as the Marshall, Timpson and Sabine Pass Railroad, and by about the first of the year 1899 had completed it to within about half a mile of Carthage. Appellant then sold the road to the owners of competitive railroad, the Texas, Sabine Valley and Northwestern Railroad, and these parties by March 1, 1899, but not before, completed the proposed road to Carthage and had daily trains running thereon as stipulated in the contract. When the road was sold to them by appellant it was stipulated by him that it should be completed to Carthage as per contract though it would have suited the purchasers better to construct it by a different. route to another point. On the completion of the line to Carthage appellant demanded the subscription but appellee refused to pay, whereupon this suit was brought.

"Appellee defended, first, upon the ground that time was of the essence of the contract, and that, as the road was not completed by November 1st, his liability for the subscription did not attach; and second, that as the road was not built to Carthage by appellant, but was sold out to and completed by parties who already had a railroad to Carthage, he was discharged from liability.

"Parol evidence was admitted to the effect that the subscribers had 231 contracted that the road should be in operation to Carthage by October or November 1st, because they expected it, by competition with the other railroad, to affect

the rate of freight on cotton to their advantage. A trial by jury resulted in a verdict for appellee.

"Questions: 1. Does the subscription contract show upon its face that time was of the essence of the contract?

"2. Did the trial court err in hearing proof as to the situation of the parties and the fact that the subscribers expected to derive benefit from the construction of the road by the date named, in the way of reduction in freight rates on cotton?

"3. Would the fact that appellant did not complete the road himself, but sold out to a rival road which completed it, constitute a defense to the action?

"4. If parol evidence as to the situation of the subscriber at the date of the contract is admissible in explanation of its meaning and in aid of its construction, must such evidence be confined to the subscriber in question or may such inquiry include his cosubscribers who signed contemporaneously with him?

"5. Do the facts show that time was of the essence of the contract?"

"It is a familiar principle that in all cases where it is sought to enforce contracts consisting of reciprocal promises, and 'where the plaintiff himself is to do an act to entitle himself to the action, he must either show the act done, or if it be not done, at least that he has performed everything that was in his power to do.' Accordingly, when by the terms of a contract one party is to do something at or before a specified time, and when he fails to do such thing within that time, he could not afterward claim the performance of the contract if the stipulation as to time were construed according to its literal terms. The rule of the common law was that time is always of the essence of the contract.' When any time is fixed for the completion of it, the contract must be completed on the day specified, or an action will lie for the breach of it": Pollock on Principles of Contracts, 462. The rule is also announced by the elementary text-writers that, at law, time is in general of the essence of the contract: Bishop on Contracts, ɛec. 1344; Anson on Contracts, 331; Clark on Contracts, 596. See, also, Beach on the Modern Law of Contracts, sec. 617 et seq. We understand the rule to apply where one party agrees to pay money to the other in consideration of the doing of an act by such other within a specified time. In general in such a case the promise to pay cannot be enforced, unless the act