the owner of a parcel of land should covenant to sell it for a certain price, and should also covenant not to sell it to anyone else, and when the time came for performance the covenantee was unable to pay for it. Here the court would certainly dismiss a bill for specific performance, whether it sought to enforce the affirmative or negative covenant.

Taking that to be the rule, it seems to us plain that, in the case at the bar, the court would not, if it had the power, enforce the affirmative covenant. With regard to the failure of the plaintiff to perform his previous contract with the defendant, the only inference which can be drawn from the findings of the Justice who heard the case is that the plaintiff is unable to perform his part of the contract and will be unable to perform it unless the season proves successful. The defendant ought not to be subjected to this contingency. Nor ought the court, by enforcing the negative covenant, to compel her to be so subjected, or to remain out of employment.

Inability on the part of the plaintiff to perform his part of an agreement is a good ground for refusing to enforce the agreement against the defendant in a bill in equity for specific performance.

[Plaintiff in Default.]

There is nothing of more importance than that the ordinary contracts between man and man, which are so necessary in their intercourse with each other, should be certain and fixed, and that it should be certainly known when a man is bound and when not. There is a difficulty to comprehend how the essentials of a contract should be different in equity and at law. It is one thing to say that the time is so essential that, in no case in which the day has by any means been suffered to elapse, the court would relieve against it and decree performance. The conduct of the parties, inevitable accident, etc., might induce the court to relieve. But it is a different thing to say the appointment of a day is to have no effect at all, and that it is not in the power of the parties to contract that, if the agreement is not executed at a particular time, they shall be at liberty to rescind it.

It has been held that as the vendor had omitted to complete a purchase for six months, being all that time in default, he was considered as having abandoned the contract.

It may be laid down as an acknowledged rule in courts of equity, that where the party who applies for a specific per

formance has omitted to execute his part of the contract by the time appointed for that purpose, without being able to assign any sufficient justification or excuse for his delay, and where there is nothing in the acts or conduct of the other party that amounts to an acquiescence in that delay, the court will not compel a specific performance. This rule appears to be founded in the soundest principles of policy and justice. Its tendency is to uphold good faith and punctuality in dealing. It would be against all the principles of equity to help those who show no equitable title to relief.

It is the business of courts of equity to relieve against lapse of time in the performance of an agreement, and especially where the non-performance has not arisen by default of the party seeking to have a specific performance.

If either party is guilty of gross negligence the court will not lend its aid to complete the contract.

The general principle appears to be perfectly established that time is a circumstance of decisive importance in land contracts, but it may be waived by the conduct of the party; that it is incumbent on the plaintiff calling for a specific performance to show that he has used due diligence, or, if not, that his negligence arose from some just cause, or has been acquiesced in; that it is not necessary for the party resisting the performance to show any particular injury or inconvenience; it is sufficient if he has not acquiesced in the negligence of the plaintiff, but considered it as releasing him.

It would be dangerous for the court to permit parties to lie by, with a view to see whether the contract would prove a gaining or a losing bargain, and, according to the event, either to abandon it or, considering the lapse of time as nothing, to claim a specific performance.

Where there has been a subsequent agreement, by which a plaintiff has contracted with the defendant to clear off and fence a piece of the land within a year in order to induce the latter not to sue him for the purchase-money, does not of itself import that the original agreement was, or was not, abandoned; and parol evidence is admissible to explain that fact, which is collateral to the operation of the instrument.

Such evidence would not vary or qualify the effect of it; it would not only go to repel any presumption, or rebut any equity, which might be attempted to be deduced from the instrument itself. If the agreement is stated to have been given in consideration of one dollar, and for various other considerations; proof may be entered of these other considerations. There is no repugnancy, in such a case, between the proof and the deed.

The defendant is not bound to prepare and tender the deed until the complainant pays or offers to pay the purchasemoney. A purchaser has no right to call upon the defendant to make out the deed itself, or to furnish him with a draft thereof, previous to the time when the deed is by the terms of the agreement to be delivered.

If a vendor after he has received the greater portion of the purchase-money, should attempt to enforce a forfeiture of the money paid, under a stipulation that he might keep the whole amount thus received and the property also if the last payment was not made on a certain day, the court would probably interfere and compel him either to accept the last payment and convey the property, or to restore the purchasemoney already paid, after deducting a reasonable allowance for the use of the land or buildings in the meantime.

Although in theory the interest is supposed to be a fair equivalent for the non-payment of money at the time agreed upon, in point of fact the person to whom it is due frequently sustains great losses in consequence of the disappointment, which the legal rate of interest cannot compensate. On the other hand, it frequently happens that the perfecting of the title and the delivery of the possession of the premises at the time contemplated by the purchaser is of essential benefit to him, which cannot be compensated by damages which are ascertainable by the ordinary rules of computing damages. It would therefore not only be unreasonable, but entirely unjust, for any court to hold that parties in making executory contracts for the sale or purchase of real estate, should not be permitted to make the time of performance an essential and binding part of the contract in equity as

well as at law, where the other party was apprised of the intention to insist upon a strict performance at the day.

The absence from the contract of any specific mention of time within which it was to be completed, which would be conclusive against a defendant at law, is considered unimportant in equity. It is incumbent upon the vendor to use his utmost diligence to complete his part of the contract, although no time is specified in it; and in equity, the purchaser is at liberty to fix a time for the completion of the contract by giving reasonable notice for that purpose. No doubt this would have no operation at law; the difference being very marked between law and equity, so far as regards this question; law only considering time as of the essence of the contract, when it is expressly specified, whatever may be the condition of the parties and the property, but equity considering time essential in those cases only, in which injury would be inflicted upon the party by disregarding it.

What constitutes a reasonable notice and a reasonable time to be fixed in it, must depend upon the contract and the circumstances of each case.

A contract may be, and sometimes is, so framed as to show by the contrast drawn between possession and the completion of the purchase, that the former possession is intended to be provisional and irrespective of title.

The legal construction of a contract is, and must be, in equity the same as in a court of law. A court of equity will relieve against, and enforce, a specific performance, notwithstanding a failure to keep the dates assigned by the contract, either for completion or for the steps towards completion, if it can do justice between the parties, and if there is nothing in the express stipulations between the parties, the nature of the property, or the surrounding circumstances, which would make it inequitable to interfere with and modify the legal right. This is what is meant, and all that is meant, when it is said that in equity time is not of the essence of the contract.

The "nature of the property" is illustrated by the case of reversions, mines or trades. The "surrounding circum

stances" must depend on the facts of each particular

case.

Contracts ought to be performed. To break them, and to propose compensation for the breach by damages is not complete justice.

A purchaser having once gone on negotiating beyond the time fixed in the contract, he is bound not to give immediate notice of abandonment, but must give a reasonable notice of his intention to give up his contract if title is not shown.

A party may not trifle with his contracts and still ask the aid of a court of equity. Neither will the law be administered in a spirit of technicality, and so as to defeat the ends of justice.

On a bill for specific performance it was observed, that where an estate was sold at auction it was difficult to state specifically, all the little particulars relative to the quantity, title and situation of the property, so as not to call for allowance and consideration when the bargain comes to be executed. The binding force of the contract and the consideration of enforcing it depends essentially upon the good faith with which it was made. Some care and vigilance must be exacted of the purchaser.

It has never been held that a man is obliged to take a thing with compensation when the thing is substantially and materially different from that which he was induced by the representations made to him to believe that he bought. Vendors are not to be permitted to say that the purchaser ought to have found out for them the blunder which they failed to find out for themselves.

When the property conveyed falls short of the right number of acres to a small extent, or comprises a larger number of acres, pecuniary compensation may be given or taken by one side or the other, but pecuniary compensation cannot be given when the land to which a title cannot be made is a material part of the property bought.

It has been said by way of criticism that a practice sprang up in the courts of equity of disregarding the old sensible rule that a bargain is a bargain, and that people should not be