Day v. . Hunt

Danforth, J. The remedy of specific performance is discretionary, and to be given upon a consideration of all the circumstances before the court, and where neither hardship nor injustice result to the defeated party, a court of review will not interfere with a judgment which requires its enforcement. The defense against it in this case is, that time was of the essence of the contract; that the plaintiff was in default, and that, during the delay between that default and the bringing of this action, the property in question had so advanced in value that performance would now be detrimental to the defendant’s interest by depriving him of the opportunity to make a fresh sale of the subject-matter of the contract at an advanced price. These objections cannot prevail. On the contrary, the very fact that the plaintiff has not strictly performed his part, and so is without remedy at law, is frequently a sufficient reason for the interposition of courts of equity, where relief is given, notwithstanding the lapse of time according to the actual merits of the case. (1 Story, Eq. Jur. § 776.) In that before us there is no express stipulation making prompt performance, or performance upon a day named, any part of the substance of the contract. The terms of the sale really require a different construction. The first condition is explicit in requiring payment of the ten per cent of the purchase-money at a time fixed; the second provides for payment of the balance upon a subse *196 quent day named, “ when the deed will be ready for delivery,” while the third condition at one and the same time relieves the vendor from the necessity of sending notice to the purchaser and provides a penalty for the purchaser’s neglect to call for the deed, by imposing “ interest thereafter on the whole amount of his purchase; ” the sixth anticipates the case of actual non-compliance by providing for a resale at the expense of the purchaser, and his liability for deficiency. In none of the conditions is to be found any statement making time the essence of the contract, and all that can be gathered from them is the intention of the vendor that the transaction should be completed within a reasonable time. ¡Nor does the notice given on the twelfth of February, have a different effect. It treats the contract as then subsisting, says “the balance still remains unpaid,” and adds, “ unless you complete ■your purchase on or before the 26tli of February, 1886,” the lots will be offered for sale. There is nothing to show that either party abandoned the contract or wished or intended to do so. They differed merely as to the form of the mortgage, and, so far as appears, that difference only prevented the completion of the sale. Although wrong in his construction as to its projDer force, the plaintiff cannot be said to be wholly without excuse. He never had the contract in his possession and seems to have thought it quite unreasonable that he could have been required to provide for insurance in a mortgage given upon vacant and unimproved property. As there is nothing in the words of the contract, so there is nothing in the nature of the case, nor in the surrounding circumstances which makes it inequitable' for the court to interfere, for the intention of the purchaser was at all times to take the juoperty and pay the balance of the price, and the wish of the vendor has at all times been to sell. The property is still in his possession and the judgment gives him full indemnity for the delay. It should, we think, be affirmed, with costs. All concur. Judgment affirmed.