been treated by the vendor as of the essence of the contract in respect to the defaults relied on for the forfeiture.328 And equity will not enforce a forfeiture of the privileges of the grantees in a contract, for failure to complete their performance of it in time, where the party seeking the forfeiture was guilty of the first breach, and failed to pay installments due until compelled to do so by judgments, while the grantees were vigorously prosecuting their part of the work, which they had, within the time limited, substantially performed, although they had not completely finished it.323

In any event, and on the strictest view of the rights of the parties, where time is not of the essence of a contract, the failure of the contractor to complete the work within the time specified does not ipso facto dissolve or terminate the contract, but at most it gives the other party an election to rescind,339 and the contract continues in force, giving the first party an opportunity to complete his performance of it, until the second party exercises his option to rescind and gives distinct notice of it.381

§ 218. Same; Unreasonable Delay in Delivery or Performance. Notwithstanding what was said in the preceding section concerning the reluctance of courts of equity to enforce forfeitures for mere delay in performance where time is not of the essence of the contract, it must not be supposed that these tribunals will grant unlimited indulgence, or that a party who is in default can be permitted, at any indefinite time, to claim his rights under the contract and insist on completing it, without regard to the length of his delay or the inconvenience or loss it may have occasioned. On the contrary, one seeking to rescind a mutual contract, of which time is not the essence, on the ground of delay by the other party in complying with its terms, may have

328 Cughan v. Larson, 13 N. D. 373, 100 N. W. 1088.

329 Pike's Peak Power Co. v. City of Colorado Springs, 105 Fed. 1, 44 C. C. A. 333.

330 Brady v. Oliver, 125 Tenn. 595, 147 S. W. 1135, 41 L. R. A. (N. S.) 60, Ann. Cas. 1913C, 376; Murray v. Barnhart, 117 La. 1023, 42 South. 489; Arbuthnot v. Big Pine Lumber Co., 134 La.

529, 64 South. 401.

331 Beck v. Chambers, 18 N. M. 53, 133 Pac. 972.

the relief he seeks if he is able to show either such willful and intentional delay as will evince the intention of the defaulting party to treat the contract as at an end, or that the delay has caused him such loss or damage as would render a decree of specific performance inequitable and unjust, 332

This rule applies to contracts for the purchase and sale of land. In these cases, a rescission has been decreed or sustained on account of mere delay, though time was not of the essence of the contract, where the purchaser neglected to pay the price or the vendor neglected to tender a conveyance, and the delay had continued for a period of anywhere from four to ten years. 333 And in one instance, where the contract required the purchaser to make a second payment within four days after the first, and he neglected to do so for several months, it was considered that the vendor was then justified in selling the property to a third person and putting him in possession.334 But on the other hand, one cannot rescind a contract for the purchase of land merely because the vendor has been unable, in consequence of the refusal of a tenant to vacate, to deliver possession until seven or eight days after the time stipulated, such delay being unimportant and being used merely as an excuse in aid of a desire to rescind.335 As to the proper course to pursue in cases of this kind, it has been said: "Although there is no stipulation of the parties that time shall be of the essence of the contract, nor anything in the nature or circumstances of the agreement to make it so, yet it may be made essential by the proper action of a party who is not in default and is ready to perform, if the

332 Reid v. Mix, 63 Kan. 745, 66 Pac. 1021, 55 L. R. A. 706; Parisi v. Guardian Savings & Loan Co., 30 Misc. Rep. 743, 62 N. Y. Supp. 1094. Compare McFarlan Carriage Co. v. Connersville Wagon Co., 49 Ind. App. 318, 96 N. E. 400.

333 Goetzmann v. Caldwell (Sup.) 152 N. Y. Supp. 491; Zimmerman v. Branyan, 62 N. J. Law, 478, 41 Atl. 689; Howard v. Babcock, 7 Ohio, 73, pt. 2; Tompkins v. Seely, 29 Barb. (N. Y.) 212; Ballard v. Walker, 3 Johns. Cas. (N. Y.) 60; Barrows v. Harter, 165 Cal. 45, 130 Pac. 1050. But compare Tompkins v. Hyatt, 28 N. Y. 347.

334 Drew v. Duncan, 11 How. Prac. (N. Y.) 279.

335 Armstrong v. Breen, 101 Iowa, 9, 69 N. W. 1125.

BLACK RESC.-37

other party is in default without justification. Thus if the vendee, without sufficient excuse, fails to pay at the stipulated time, and the vendor is in no default and is able and ready to perform all that the contract then requires of him, he may notify the vendee to pay within a reasonable time or he (the vendor) will consider and treat the contract as rescinded. In such case, if payment be not made within a reasonable time, the vendor has a right to treat the contract as abandoned by the vendee. In like manner, and with like consequences, the vendee may notify the vendor if the latter is in default and the former is not." 336 So also, in regard to mining contracts and leases. Where land is conveyed to a party on condition that he shall, "at his own convenience and time," and at his own expense, test for minerals, and if any be found worth working, to work the same and pay the grantor a proportion of the net profits, and this was the sole consideration, the grantee is bound to perform the condition within a reasonable time and to carry on the work continuously, and a failure to do either will work a forfeiture.337

The same rule has been applied in the case of building contracts. The owner may terminate the contract (or a subcontractor may terminate his part of the engagement) on account of the unreasonable and unexcused delay of the contractor in prosecuting the work,338 as, for example, where the contractor has undertaken to build and finish a house by a certain date, and at the expiration of the time he has not even commenced the work.3 339 In other classes of contracts, the length of the delay, as being justifiable or unreasonable, depends on the circumstances of the particular case and the nature of the work to be performed. Thus, where one contracted to dig a well for another, the work to be pushed as fast as possible, and shortly after beginning the work the drill became fastened in the well and could not be removed, and the contractor made occasional efforts

336 Kirby v. Harrison, 2 Ohio St. 326, 59 Am. Dec. 677. 337 Adams v. Ore Knob Copper Co. (C. C.) 7 Fed. 634.

338 Seventh Street Planing Mill Co. v. Schaefer, 30 Ky. Law Rep. 623, 99 S. W. 341.

339 Miller v. Phillips, 31 Pa. 218.

to remove it during the next eight months, and then said that he abandoned it and wished to start another well under the same contract, it was held that his unreasonable delay gave the other party a right to rescind.840 But on the other hand, where a plan for financing a railroad company contemplated the organization of a new company for the purpose of issuing a series of bonds, and the sale of the same. by a finance company, which was a party to the contract, and no particular time was limited, it was held that the failure to sell the bonds within sixteen months was no ground for rescinding the contract.841

In contracts for the sale of personal property, the tendency is to regard a comparatively short delay as unreasonable, if there are no obstacles to the completion of the contract. Thus, where a contract was for the delivery of a quantity of books, and two years and a half elapsed before the delivery of the first sets, it was held that the delay, if unexplained, was so unreasonable as to constitute a breach of the contract.342 So, where an order is placed for a cash register, not to be specially made for the customer, but to be furnished out of stock, a delay of more than a month in tendering delivery is sufficient to justify the purchaser in countermanding the order.343 And where a contract for the sale of a piano, which should ordinarily be completed promptly, is not completed within four months, and neither party has done anything within that time to complete the same, either party may treat the contract as rescinded. Again, on a sale of cotton, which under the custom of the trade should have been received and paid for in from three to five days, where the seller was importunate in his endeavors to close the sale, and the buyer inactive until seven days thereafter, it was held that the seller had the right

340 Duple v. Warren (Iowa) 79 N. W. 363.

344

341 American Loan & Trust Co. v. Toledo, C. & S. Ry. Co. (C. C.) 47 Fed. 343.

342 Barrie v. Quinby, 206 Mass. 259, 92 N. E. 451.

843 Hallwood Cash Register Co. v. Lufkin, 179 Mass. 143, 60 N. E. 473.

344 Hallet & Dayis Piano Co. v. Starr Piano Co., 85 Ohio, 196, 97 N. E. 377.

to rescind the sale on such seventh day.345 But in all these cases it must be observed that no advantage can be taken of a delay which is adequately explained and for which a sufficient excuse is offered.346

§ 219. Same; Waiver or Extension of Time.Even where time is made the essence of the contract, this provision may be waived by the party for whose benefit or protection it is inserted, either expressly or by extending the time for payment or performance or by granting indulgence to the other party in this regard; and when such a waiver has been made, he cannot arbitrarily and summarily declare a forfeiture of the contract for delay, but must first demand payment or performance and give the other party a reasonable time and opportunity, after such demand, to comply.347 Thus, although a purchaser of land has made default in paying agreed installments of the price, yet if the vendor, by his subsequent course of dealing, has led the purchaser to believe that a forfeiture will not be insisted on, he cannot suddenly declare a forfeiture without giving notice and an opportunity to pay the balance due.348) So, where the contract requires the vendors of land to furnish title papers and the purchaser to ascertain the acreage within a given time, and both parties have failed to perform within the stipulated time, the vendor cannot claim a forfeiture of the contract without first tendering performance.349 In a case in Illinois, the complainants offered to sell certain land to defendant at a stated price if paid within ten days, but on defendant's objection to the time limit, complainants withdrew it and agreed to give time for examination of title, etc., which offer was accepted. Complainants waited fifty days, and then tendered a deed and

345 Tabary v. Thieneman, 27 La. Ann. 720.

346 American Case & Register Co. v. Griswold, 68 Misc. Rep. 379, 125 N. Y. Supp. 4.

347 Taylor v. Goelet, 208 N. Y. 253, 101 N. E. 867, Ann. Cas. 1914D, 284; Shorett v. Knudsen, 74 Wash. 448, 133 Pac. 1029; Gibson v. Rouse, 81 Wash. 102, 142 Pac. 464; Bennie v. Becker-Franz Co., 14 Ariz. 580, 134 Pac. 280. See Henderson Bridge Co. v. O'Connor, 88 Ky. 303, 11 S. W. 18, 957.

848 Smith v. Treat, 234 Ill. 552, 85 N. E. 289.

349 Golden v. Cornett, 154 Ky. 438, 157 S. W. 1076.