Carter v. Sherburne Corp.
Vermont Supreme Court
315 A.2d 870 (1974)
Sherburne (defendant) repeatedly shifted Carter (plaintiff) between different development contracts, causing Carter to miss the contracts' completion deadlines, after which Sherburne withheld the contracts' ten percent holdback provision for noncompliance; two of the four contracts included penalty provisions for late performance, but none contained express language making time of the essence. Carter sued for the withheld amount; the trial court found Carter substantially complied since time wasn't of the essence and any delay was Sherburne's own fault, and Sherburne appealed.
Whether performance on time is a constructive condition of a construction contract's payment obligation where the contract contains no express time-is-of-the-essence language, and where the delay was caused by the party seeking to withhold payment.