(May 29, 1912.)

#### A. HAAS, Respondent, v. J. M. COBURN, Appellant.

[124 Pac. 476.]

Specific Performance — Time Essence of Contract — Mistake—Conflict of Evidence.

(Syllabus by tbe court.)

1. Where H. and C. enter into a written contract whereby H. agrees to purchase and C. agrees to sell certain seal estate, and time is made the essence oí the contract, and H. enters into possession of the land and erects valuable improvements thereon which exceed in' value the purchase price of the land, and remains in possession thereof and fails to make payment on the date of maturity as stipulated in the agreement, and it appears to the satisfaction of the court that the failure to make payment within the time stipulated was caused either by the mistake and inadvertence of H. as to the date payment came due or by misleading statements as to the date of maturity made by C., or both, a court of equity should relieve the purchaser from the forfeiture and grant a specific performance in a case where payment was tendered within a few days after the maturity thereof and as soon as the purchaser learned of his mistake.

2. In an action for specific performance of a contract to convey real estate, where the vendor .claims that the purchaser has forfeited the contract and the purchaser sets up facts whieh would tend to excuse his failure to make payment within the stipulated time, and such facts are disputed by the vendor and his witnesses and the equities of the case are strongly with the purchaser, the court is justified in finding for the purchaser and ordering specific performance.

APPEAL from tbe District Court of tbe Fifth Judicial District for Bannock County. Hon. Alfred Budge, Judge.

Action for specific performance. Judgment for plaintiff and defendant appealed.

*Affirmed.*

George E. Gray, for Appellant.

Tbis court bas already passed upon a contract, not only in substance, but word for word, as tbe contract in question, *48in *Smith v.*Krall, 9 Ida. 541, 75 Pac. 263, in which the court unequivocally holds that time is the essence of the contract; also *Machold v. Farnan,*14 Ida. 258, 94 Pac. 170.

The supreme court of Colorado has decided a case on all-fours with the case at bar, assuming all of the testimony of the plaintiff to be true. *(McKenzie v. Murpjiy,*31 Colo. 274, 72 Pac. 1075.)

H. V. A. Ferguson, for Respondent.

Time may be of the essence of the contract in many cases, but the facts may be such that the courts will refuse to strictly construe the contracts. *(Durant v. Comegys,*3 Ida. 204, 28 Pac. 425.)

In order to take advantage of any laches on the part of the vendee, it was the duty of the vendor to declare a forfeiture, and this he never did. *{Rourke v. McLaughlin,*38 Cal. 196; *Sigler v.*Wick, 45 Iowa, 690; *Wesiervelt v. Jluis-kamp,*101 Iowa, 196, 70 N. W. 125; 29 Am. & Eng. Ency. of Haw, 683-685, and cases cited.)’

Where time of performance is of the essence of the contract, a party who does any act inconsistent with the supposition that he continues to hold the other party to this part of the agreement will be taken to have waived it altogether. (29 Am. *&*Eng. Ency. of Law, 1104, and cases cited in note 1.)

AILSHIE, J.

This action was commenced for the specific performance of a contract to convey real estate. Judgment was entered for the plaintiff and the defendant appealed.

On the 11th of March, 1907, appellant and respondent entered into a written agreement whereby appellant agreed to sell and the respondent agreed to buy lot 1 in block 1 of South McCammon, in Bannock county, at a stipulated price of $350, which was evidenced by a promissory note executed by the respondent. The agreement contained a provision that the purchase price should be paid on or before the 11th day of March, 1908, and it was provided “that J. M. Coburn, party of the first part, agrees to extend the time one year from March 11, 1908, on all money not paid, at the rate of ten per *49cent per year until March 11, 1909.” Payment was not made on March 11, 1908, and an extension of one year was granted in conformity with the provisions of the contract. The agreement also contained the following provision:

> “In the event of a failure to comply with the terms hereof, by the said party of the second part, the said party of-the first part shall be released from obligation in law or equity to convey said property, and the said party of the second part shall forfeit all right thereto, and all payments made on said property. And the said party of the first part, on receiving such payment, at the time and in the manner above mentioned, agrees to execute and deliver to said party of the second part, or to ... . assigns, a good and sufficient warranty deed to said premises.”

Following the execution of this agreement, the respondent was let into possession of the premises and thereafter paid all Íaxes and assessments on the property and erected a house ■toarn and other buildings on the land of the value of and continued to occupy and use the property ■PRtill in the possession and occupancy thereof at the Rie of the trial of this case. Payment was not made on the 11th of March, 1909, but was tendered somewhere from the 16th to 22d of March. Appellant refused to accept the same and execute a deed unless the plaintiff would pay an additional sum of about $100 over and above the contract price.

On the trial of this case the appellant contended that time was of the essence of the contract and that the failure of the respondent to mate payment at the time and in the manner specified in the contract worked a forfeiture of all rights under the contract. The respondent claimed that he was excusable for the neglect and failure to make payment on the 11th of March, and produced his evidence in support thereof, which was directly contradicted by appellant and his witnesses. The court after hearing all the evidence in the case made his findings in favor of the respondent upon all the contentions made. On the issue of respondent’s excusable negligence and laches in not making the payment at the specified time the court found that a short time after the making *50and delivery of the written agreement the respondent misplaced his copy of the contract and that the date of the maturity of the debt escaped his memory, and that he labored under the impression that the date of final payment was the latter part of March or the first of April. “That in the month of March, 1908, the defendant informed the plaintiff by means of a letter that his note would fall due on the first day of April, 1908, and caused the plaintiff to believe that his said note came due on April 1, 1908, and that April 1st was the month and day on which the said agreement was dated. That the plaintiff continued so to believe, and had no means of otherwise informing himself, until about the 16th day of March, 1909. That about March 16, 1909, the defendant informed the plaintiff that the true date of his contract and note was March 11, 1907, and that said note was then past due, and that plaintiff was in error in believing the date to be April 1, 1907. That about the said 16th day of March, 190£ the defendant waived the nonpayment of said note on M¡ 11, 1909, agreed to meet the plaintiff in Pocatello.^J-sV"*-' March 19, 1909, and to make and deliver a good eient conveyance of said premises to the plaintiff, and accept the purchase price for the same as expressed in said written agreement. That on March 19, 1909, the plaintiff went to Pocatello to meet the defendant according to their mutual agreement, procured and had ready the money to pay off said note and contract in full; but that the defendant failed, neglected, and refused to go to said Pocatello, and did not there meet the plaintiff as agreed on said or any other daté or time. That on said March 19, 1909, the plaintiff, at said Pocatello, deposited in the hands of a trustee, to wit, one Henry O’Leary, the amount of money then due as the purchase price of said premises, with the interest due thereon at that time, to wit, the sum of $393.40, and instructed said trustee to pay said amount to the defendant, either in person or through the First National Bank of Pocatello, as the defendant might elect.” The court further found that on about the 24th of March, 1909, the plaintiff personally notified defendant of a deposit of money as aforesaid and requested *51defendant to make and deliver a good and sufficient conveyance, and that defendant refused to accept the money and refused to make, execute and deliver a deed of conveyance unless the defendant would pay tbe sum of $500 tberefor.

The evidence of respondent, the plaintiff in the lower court, and his witnesses was sufficient to justify the court in making the foregoing findings and is sufficient to uphold them. Had the court believed the appellant and his witnesses, he would have found that no such agreements and understandings were had, as appellant denied all these facts and testified that he notified the respondent on several occasions as to the date on which the debt would become due, and that he demanded payment on the 11th day of March and that the respondent neglected and refused to make payment. The court had all the parties before him and was in a position to estimate and measure up the respective parties as to their veracity and integrity, and we are not inclined to disturb his findings. The circumstances as disclosed by the record are all in favor of the respondent. The fact that he had been let into possession of the premises and had made valuable improvements thereon in excess of the value of the land itself constitutes a strong equity in favor of respondent, and it also tends to corroborate the evidence of the respondent that he was deceived or misled or mistaken as to the date on which the payment would become due, for the reason that within at least eight days thereafter he procured the money and deposited it with O’Leary to pay the debt upon the execution of a deed. Again, it is not reasonable to suppose that he would have been inclined to forfeit all the improvements that he had made on the premises which exceeded in value the amount of the purchase price on the real estate. During the time that was allowed to elapse between the actual maturity of the indebtedness and the tender of payment, the appellant did not change his relation to the property nor was he in any way prejudiced by reason of any changed relation he thereafter sustained either to the property or to the respondent or any third party.

*52In the foregoing respects this case differs in its attendant facts and circumstances from the case of *Smith v. Krall,*9 Ida. 535, 75 Pac. 263, on which appellant seems to rely, and it likewise differs from *Machold v. Farnan,*14 Ida. 258, 94 Pac. 170.

The judgment should be affirmed, and it is so ordered. Costs awarded in favor of respondent.

Stewart, C. J., and Sullivan, J., concur.