Failure of contingent consideration, in general no defence.

Excess of purchase-money, when a purchaser's de-fence.

Remarks on the doctrine.

(n) Supra, 353, el seq.

(o) See Sug. 312, 314; Ryle v. Swindells, M'Clel. 519; Playford v. Playford, 4 Ha. 546; Vigors v. Pike, 8 Cl. & Fin. 645.

(p) Playford v. Playford, ubi supra.

(q) Supra, 117, et vide, 511.

(r) Day v. Newman, cited 10 Ves. 300.

(s) Sug. 310.

As to the six of the above heads: - comprising those grounds of defence which consist of matters relating to the conduct of the plaintiff subsequent to the contract: these may be conveniently treated of with reference to 1st. Cases, where the defence is, that the plaintiff (whether vendor or purchaser) has released, expressly waived, or improperly delayed to enforce his rights under the contract.

2ndly. Cases, where the defence is, that the plaintiff (being the vendor) has, by his conduct, in respect of the estate, or towards the purchaser, forfeited his rights under the contract.

3rdly. Cases, where the defence is, that the plaintiff (whether vendor or purchaser) has already chosen his remedy and obtained satisfaction for the alleged breach of contract.

6th - Conduct of plaintiff after con-tract - when a defence.

Release, waiver of, or delay to enforce the contract.

Conduct of plaintiff.

Election of other remedy for breach of contract.

(t) And qu. as to the hardship of the bargain being a defence, whether the Court should ever, merely on that ground, decline to enforce specific performance, if the circumstances, which are relied on as constituting the hardship, may be supposed to have been present to the mind of the defendant at the time of his entering into the contract?

As to the first class of cases. - An actual release by deed, or a mere written waiver of the contract, will, of course, be a good defence in Equity: so will a mere parol waiver; "but such, a defence must be established with the greatest clearness and precision; and the circumstances of waiver and abandonment must amount to a total dissolution of the contract, placing the parties in the same situation in which they stood before the agreement was entered into" (u): and Sir E. Sugden remarks, that "the Court will look at the evidence with great jealousy" (w): and has held, judicially, that there must be as clear evidence of the waiver as of the existence of a contract (x).

We have already considered (y), how far time is in Equity of the essence of the contract: even, however, where a clear right has existed to enforce the contract such right may be lost by delay in resorting to the Court; e. g., an unexplained delay of seven years (z), and, in another case, of four years and eight months (a), in filing the bill, has in itself been considered a sufficient answer to the suit: where the bill was filed within fourteen months after a correspondence upon objections to the title had ceased, by the defendants returning no answer to the last letter which called for a distinct answer and threatened to file a bill, specific performance was decreed; the Court observing, that one could easily imagine that circumstances might have happened which would have made it peevish to file the bill immediately (b). Less time, however, will in general be allowed when the defendant has expressly refused, than when he merely tacitly neglects, to perform the agreement: in cases of the former description, periods of delay, varying from two years and a half (c) to twelve months (d), have been held sufficient to bar the relief (e): it does not, however, appear, that time will run against the plaintiff so long as the question of completion remains under discussion (f); or while he is substantially in possession of the benefit contracted for (g); the modern tendency of the Court has been to require the plaintiff to be prompt in seeking his equitable remedy (h).

Release, waiver of, or delay to enforce tlie contract.

What delay in filing bill, a defence.

(u) Per Lord Lyndhurst in Robinson v. Page, 3 Russ. 114, 119; and see Price v. Dyer, 17 Ves. 364.

(w) Sug.173.

(x) Carolan v. Brabazon, 3 J. & L. 200; as to the alteration of an agreement by either party, vide supra, p. 108.

(y) Supra, Ch. X., and as to a mere option of purchase, vide supra, 98, n. (q).

(z) Milward v. Earl of Thanet, 5 Ves. 720, n.

(a) Alley v. Deschamps, 13 Ves. 225.

(b) Marquis of Hertford v. Boore, 5 Ves. 719.

As to the second class of cases. - We have already seen that any act by the vendor - e. g. the fall of ornamental timber - which prevents his giving to the purchaser that which was substantially the subject-matter of the contract, will be a defence to his suit for specific performance (i); but that he may, in due course of husbandry, cut coppice, and get in crops, accounting to the purchaser for the net profits (k).

So, the circumstance of the vendor having turned the purchaser out of possession, (which he was entitled to under the contract, and had been allowed to take,) has been held a sufficient defence to the vendor's suit (l).

So, if the plaintiff refuse or be unable to perform a material stipulation under the contract - as if it had been agreed that the vendor should become tenant of the estate for a term of fourteen years at a specified rent, and he become insolvent (m) - this may be a reason for refusing specific performance against the purchaser; but this defence was overruled when the agreement was for merely a yearly tenancy, and especially as the vendor's embarrassments were known to the purchaser (n).

Waste of estate, when a defence; or ejectment of purchaser rightfully in possession.

Or inability of vendor to perform a material

(c) Stewart v. Smith, 6 Ha. 222, note.

(d) Watson v. Reid, 1 Russ. & M. 236.

(e) See Heaphy v. Hill, 2 Sim. & St. 29, about two years' delay; Walker x. Jeffreys, 1 Ha. 341, two years; Southcomb v. Bishop of Exeter, 6 Ha. 213, nineteen months.

(f) See Southcomb v. Bishop of Exeter, 6 Ha. 213; and Moxhay v. Inderwick, 11 Jur. 837, where a correspondence upon the shape of the conveyance was carried on at considerable intervals for nearly four years; and see Gee v. Pearse, 2 De G. & S. 325.

(g) Clarke v. Moore, 1 J. & L. 723; but delay will be material on the question of costs: see Burke v. Smyth, 3 J. & L. 193.

(h) Southcomb v. Bishop of Exeter, 6 Ha. 213.

(i) Supra, 116.

(k) Ibid.

(l) Knatchbull v. Grueber, 3 Mer. see 144.

As to the third class of cases. - If the plaintiff has brought an action at law and has recovered damages for breach of contract he will be held to have elected his remedy (o).