
    James H. Campbell v. Henry W. Hicks.
    A vendee of real estate paid one fourth of the purchase-money in hand, and agreed to pay the remainder in three annual instalments. He wholly neglected to make the intermediate payments, and was then duly notified by the vendor that prompt payment of the whole would be insisted upon at the maturity of the last instalment; at which time the vendor having tendered a conveyance and demanded the purchase-money, informed the vendee that unless he paid the money on that day the contract would be at an end. Twenty-eight days thereafter the vendee tendered the money and demanded a conveyance. Held: — That the purchaser is not entitled to a decree for specific execution.
    
      Appeal. Reserved in the district court of Lucas county.
    This is an action to compel the specific execution of three several contracts, made by Hicks with Campbell, for the sale by the former to the latter of three lots in the city of Toledo. The case came by appeal into the district court, where all the evidence was heard and embodied in the record, and the cause then reserved for decision here.
    By the terms of these contracts — for they are all three in these respects similar — Campbell was to pay one fourth part of the purchase-money in hand, and the remainder in three equal annual instalments, with interest payable annually on the deferred payments. Campbell also agreed to pay all taxes and assessments on the lots, and was entitled to deeds of conveyance upon “ fulfilment of all and singular the covenants contained ” in the respective contracts “ in the manner and at the time specified ” therein. Each contract also contained a provision, that if Campbell should fail to make any of the payments, of principal, interest, taxes, or assessments, he ■should forfeit all he had paid, and surrender possession, with ■.all improvements; which improvements, together with the ■money paid, were to be considered as liquidated damages.
    Campbell paid the first instalments; and although he did ■not take actual possession of the lots, he exercised acts of ■ownership over them during the running of the deferred payments, paid the taxes assessed against them during that time, ■including an assessment to the amount of $294, and made ¡some slight improvements or repairs upon one or two of the lots. But he wholly failed to pay the second or third instal■ment of the purchase-money'when due, or the stipulated ■•annual interest, although requested to do so by Hicks. Nor ■ did he pay or offer to pay the last instalment until twenty-height days after it fell due. He then tendered the full .amount of the deferred instalments, with the interest, and demanded deeds. His only excuse for this delay is, that Hicks had been lenient and forbearing with him in regard to the ■execution of other like contracts; that Hicks’ agent had ¿assured him at the time of making the contracts that they would not be rigidly enforced; and that as Hicks had suffered the contracts to remain open after the intermediate defaults, he supposed no advantage would be taken of the final default, and was therefore unprepared to pay when the last payment became due.
    But the testimony shows that several months before the final instalment fell due, at a time when he was importuned for payment of the second and third instalments, which were then overdue, he was notified by the agent of Hicks, that the' deeds would be ready at the time fixed, and that prompt payment of the last. instalment would be insisted upon, and the forfeiture enforced if it was not made. This is positively sworn to by the agent; and Campbell admits he was informed by the agent that the deeds would-be ready, but says he has no recollection of anything said as to prompt payment, or the forfeiture. The evidence also shows that on the day the final instalment became due, the deeds were duly tendered, and payment demanded. Campbell’s reply to this demand was, in substance, that he would probably not be able to pay it for some five or six months, but that he would pay it sooner if he could. He was then informed that unless he paid the money on that day, the day of the demand, the forfeiture would be enforced, and the contract rescinded. Some twenty days after this, he called upon the agent of Hicks, and requested a fulfilment of the contracts, which was refused; and eight days later, as has been said, he made a tender of the money, and demanded his deeds, which were again refused. The testimony shows that Campbell was a real-estate dealer, and bought this property, for re-sale; that some months after the purchase’ he contracted to sell the property to one Scott, at an advanced price; and that the money to be paid by Scott, and which did not become due till some months after the final payment was to be made by Campbell, was the means relied upon by Campbell for fulfilling his contract with Hicks.
    
      M. It. ds It. Waite for plaintiff:
    1. By his tender of the deed and demand of payment on the last day, the defendant waived all defaults' up to that day. Having waived all defaults up to that, he cannot forfeit for non-payment on that day. A reasonable time must be given to enable the plaintiff to meet this new demand. Higby v. Whittaker, 8 Ohio, 201; Rummington v. Kelley, 7 Ohio, pt. 2, 103; Avery v. Kellogg, 11 Conn. 572; Fuller v. Hovey, 2 Allen, 325; Harris v. Troup, 8 Paige, § 426; Parkin v. Thorold, 11 E. L. and E. 278.
    2. The conduct of the defendant had been such as to manifest an intention not to insist upon a strict and literal performance. The plaintiff was thrown off his guard by this conduct of the defendant. He cannot suddenly stop, and insist upon a forfeiture, without a previous notice that he intended to do so. Harris v. Troup, 8 Paige, § 427; Avery v. Kellogg, 11 Conn. § 478.
    
      3. As the plaintiff had paid one fourth of the purchase-money, and, after his default, had been permitted to pay a large assessment upon the property, the defendant will not be permitted to rescind the contract, unless there has been gross neglect on the part of the plaintiff.
    The defendant has waived *the provision in the contract making time material. Upon such waiving, time became not material. To make it again material, he must give notice that he shall insist upon performance. Then, if the plaintiff fails to perform within a reasonable time, he will lose his right to demand performance by the defendant.
    But even this will not be done, if, acting upon the waiver by the defendant, the plaintiff has paid part of the purchase-money or expended moneys in the improvement of the property, unless the property has greatly appreciated in value, or the circumstances of the parties have otherwise so changed as to make it inequitable to enforce the contract.
    
      Macomber <£s Moore for defendant:
    1. In contracts for the sale of real estate, time may be made of the essence of the contract, and when so made, the parties will be bound by the stipulations agreed upon, unless strict performance be .subsequently "waived, either expressly or by implication.
    Time is of the essence of the contract, when the contract, by express stipulation, makes it so. Benedict v. Lynch, 1 Johns. Ch. 375 to 379; Scott v. Field, 7 Ohio, 425; Heckard v. Sayre, 34 Ill. 142; Steele v. Biggs, 22 Ill. 652-657; Kemp v. Humphreys, 13 Ill. 576; Grigg v. Landis, 4 C. E. Green (N. J.), 350; Hansbrough v. Peck, 5 Wallace, 497.
    Time .may become of the essence of the contract by subsequent notice. Or where, .from “the nature and subject-matter of the contract, it is material that it should be performed at the time.” Hutchinson v. Heirs of McNutt, 1 Ohio, 18; Rummington v. Kelley, 7 Ohio, 433; Higby v. Whittaker, 8 Ohio, 198; Brewer v. State of Connecticut, 9 Ohio, 196; Mann v. Dun, 2 Ohio St. 187; Kirby v. Harrison, 2 Ohio St. 332; Fuller v. Hovey, 2 Allen, 325; Merret v. Brown, 4 C. E. Green (N. J.), 286.
    In this case the parties made time of the essence of the contract, and that in strong and unequivocal terms.
    The plaintiff has signally failed to comply with the terms of the contract. This upon his own admission.
    This failure has in no inanner been acquiesced in by the defendant, either expressly or by implication.
    Defendant’s method of dealing with plaintiff on other contracts has no bearing on this contract.
    Defendant has persistently bndeavored to collect the payments as they fell due on this contract.
    By the very terms of this contract it was forfeited upon the failure to make the-payments as they fell due, and no further notice on the part of the defendant of an intent to enforce a forfeiture was necessary. The terms of the contract itself embrace that notice. But if such notice was necessary, it was given.
    2. Purchasers upon speculation, at a nominal price, do not l’ecommend themselves to the favorable regard of the court. Brewer v. State of Connecticut, 9 Ohio, 189. Also other cases cited above.
    3. Relief will only be granted to parties who come into court with clean hands. St. John v. Benedict, 6 Johns. Ch. 117; Huntingdon v. Rogers, 9 Ohio St. 516; Kirby v Harrison, 2 Ohio St. 333; Alley v. Deschamps, 13 Ves. 224; Hutchinson v. McNutt, 1 Ohio, 18.
   Welch, J.

We do not see on what principle the plaintiff can ask to be relieved at the hands of a court of equity. He has utterly failed himself to fulfil the agreements which he seeks to enforce against the defendant; and his failure appears to be without any just excuse. Parties askiüg the specific execution of contracts must make it appear that they have been prompt, willing, and anxious ” to perform on their part. Otherwise, as a general rule, they will be left to their remedies at law.

The petition is dismissed with costs.

Bbinkerhoff, C.J., and Scott, White, and Day, JJ., concurred.  