(p) Time has been held to be of the essence of the contract, upon the construction of the agreement, in Seaton r. Mapp, 2 Coll. 556 (see Drysdale v. Mace, 5 De G., M. & G. 103, 27 Eng. L. & Eq. 195); Payne v. Banner, 7 Jar. 1051; Wells v. Smith, 7 Paige. 22.

(q) Lord Eldon, Ch.. Boehm v. Wood, I Jacob & W. 420: Alley v. Deschamps, 13 Ves. 225. But even where time is of the essence of the contract, the defendant cannot take advantage of a delay of which his own misconduct was the cause. Morse v. Merest, 6 Madd. 26; Taylor v. Long worth, 14 Pet. 172: Prichard v. Ovey, 1 Jacob & W. 396. And a stipulation making a failure to pay purchase-money at the time agreed a breach of the con tract, and a ground for its rescission, may be waived by an acceptance of the money subsequently. Hunter o. Daniel, 4 Hape, 420. Or by other acts of waiver. Reed 0. Chambers, 6 Gill & J. 490; Schroepel v. Hopper, 40 Barb. 425: Williston v. Willis-ton, 41 Barb. 635.

1 Where a plaintiff cannot fully perform his part of the contract but the part which cannot be performed Is of slight comparative importance, and compensation for it can be given in damages, equity will enforce specific performance on condition that the plaintiff pay the equivalent in value of what is not performed, or allow a proper deduction in the price which he was to receive. Richardson v. Smith, L. R. 6 Ch. 648. In re Fawcett, 42 Ch. D. 156; Towner v. Tickner, 112 111. 217; Smyth v. Sturges, 108 N. Y. 495. See also postt section vi.. p. * 399.

2 Where time is of the essence of the contract, for the sale of land, and no payment has been made on it for twenty-five years, except a part of the first year's interest in advance, nor any tender made, specific performance will not be decreed of such contract, nor a rescission of it and a return of the money paid thereon. Gibbons v. Hoag, 95 111. 45. See Merritt v Brown, 6C.E. Green, 401. - K.

himself. There may be given, in answer to this, the rule in equity, that " time is not of the esseuce of a contract;* (r) but we think it would be wiser and safer to express what is really meant by this rule, by saying, that time is not necessarily of the essence of a contract (rr) It certainly may be made so by the parties themselves, or by the circumstances of the case, (rs) although the parties say nothing about it (s) Thus, if a delay is asked by either party, and the * court give it, they never give an unlimited period, but name a day of reasonable distance, and refuse to go further, (t) This rule is invoked in a great variety of cases, and is applied in many of them. And language is sometimes used in respect to it, possibly a use is sometimes made of it, which is not easily reconciled with the just duties and powers of equity. We cannot doubt that the rule must needs be substantially this: the court will always inquire into the time when a thing is to be done, as they will into any other part of the contract If the thing to be done - whether a conveyance of land or anything else - can be as well done at a later time as an earlier, or the reverse, and certainly without detriment to the party called upon to do the thing, then time is not in fact of the essence of the contract, and will be regarded by the court, or rather disregarded, accordingly, provided the parties have not themselves expressly agreed that the time shall be treated as essential, or made it so by their conduct, (tt) But if it seems that the whole value or a material part of the value of the transaction to the defendant, depends upon its being done at a certain time, and no other, or that the substitution of any other will subject him in any way to loss or material inconvenience, then time is certainly of the essence of the contract, so far as he is concerned, and the court will so regard it. (u) And in deciding the question * whether time be of the essence of the contract or not, a court of equity could hardly fail to consider that the express agreement of the parties themselves upon a certain time is strong, though not conclusive, evidence, that it belonged to the essence of the contract (v)

(r) Bat the party who seeks to avail himself of this maxim, most have an equity which warrants his invoking it. A purchaser whose default has not been bona fide, has no equity to support an application for specific performance; and if it appear that he bought speculatively, without knowing, and without having probable grounds for believing, that he should be prepared with money to pay the price at the stipulated time, even a comparatively short delay may deprive him of the assistance of a court of equity. Gee v. Pearse, 2 De Q. & S. 325. And see Alley v. Deschamps, 13 Ves. 228.

(rr) Snowman v. Harford, 55 Me. 197*

(rs) Heckard v. Sayre, 34 III. 142.

(s) A change of circumstances, subsequent to the making of the contract, may-render a prompt fulfilment of it on the plaintiff's part a necessary condition to his right to relief The doctrine of equity is thus stated by Chief Justice Marshall; "The rule that time is not of the essence of a contract has certainly been recognized in courts of equity; and there can be no doubt that a failure on the part of a purchaser or vendor to perform his contract on the stipulated day, does not of itself deprive him of his right to demand a specific performance at a subsequent day, when he shall be able to comply with his part of the engagement. It may be in the power of the court to direct compensation tor the breach of contract In point of time, and in such case the object of the parties is effectuated by carrying it into execution. But the rule Is not universal. Circumstances may be so changed, that the object of the parties can be no longer accom plished, that he who is injured by the failure of the other contracting party cannot be placed in the situation in which he would nave stood had the contract been performed. Under such circumstances, it would he iniquitous to decree a specific performance, and a court of equity will leave the parties to their remedy at law.' Brashier v. Gratz, 6 Wheat. 533. See Magoffin v. Holt, 1 Duvall, 95; Merrirt v. Brown, 4 Green, 286; Andrews v. Bell, 56 Pa. 343.