It is not always necessary for the vendee to actually tender to the vendor the amount of the purchase price or of the initial payment to constitute a valid and sufficient tender of performance on his part. If the vendee appears at the appointed time and place ready and willing to pay, and the vendor fails to appear, a sufficient tender has been made by the vendee without any farther action on his part, and it is not necessary for him to prepare and tender a deed to be executed by the other party.75

As a general rule a court of equity will not aid a vendee who has delayed in making payments required by a contract provided at the time he made such agreement he had no reasonable expectation for believing he would be able to comply with the terms of the contract.76 Nevertheless a court is not ordinarily concerned where a tender is made whether the money for such tender was furnished by the plaintiffs themselves or advanced by one who expected to purchase from the vendee after they acquired title.77

In the absence of such a provision in the contract time will not be held to be of essence thereof and the fact that the vendee's tender of performance may be made a few days after the date fixed in the contract will not necessarily terminate the contractual relations.78 real estate to the defendant and latter executed a promissory note in payment therefor. Before delivery of deed the house was destroyed by fire. Defendant refused to pay the note. Held: On sale of land it becomes the property of the vendee from the execution, delivery and acceptance of the written contract; and if a building thereon is destroyed by fire between the time of such contract of sale and the time fixed for delivery of possession by vendor, the vendee and not the vendor bears the loss.

75. Frazer v. Hovey, 195 Mich. 169; Daley v. Litchfield, 10 Mich. 29, 36 Cyc. P. 706.

76. Waller v. Lieberman, 214 Mich. 445; Lake Erie Land Co. v. Chilinski, 197 Mich. 214. Where specific performance was refused, it appearing among other things that the vendee had entered into the contract without any bona fide belief on his part that he could swing the deal unless something turned up or he might succeed in transferring his contract to other hands.

77. Marussa v. Temerowski, 204 Mich. 271; Waller v. Lieberman, 214 Mich. 445.

78. Waller v. Lieberman, supra; Marussa v. Temerowski, supra; Lozon v. McKay, 203 Mich. 364.

The decisions further hold that if the parties pursue such a course of conduct as to indicate that performance is not expected in accordance with the strict letter of the contract, such conduct may constitute a waiver of the right to require strict performance.79

While at law where a time is fixed for the performance of a contract it is considered to be of the essence thereof, it is otherwise in a court of equity and its execution will be decreed notwithstanding the time has elapsed for its performance unless there has been culpable negligance or willful delay on the part of him who is seeking the aid of the court.80

From the foregoing rule of law it would seem that much more care must be exercised respecting tender where the parties seeking redress expect to obtain such redress in a court of law rather than in a court of equity.