If the plaintiff is in default, he cannot have specific performance of the contract, unless (a) he is prevented from performing by the acts of the defendant, or (b) the extent of his default is small and suitable compensation can be made therefor. In Benedict vs. Lynch,18 the court said:

"It may, then, be laid down as an acknowledged rule in courts of equity (and so the rule is considered in the elementary treaties on this subject), that where the party who applied for a specific performance has omitted to execute his part of the contract by the time appointed for that purpose, without being able to assign any sufficient justification or excuse for his delay, and when there is nothing in the acts or conduct of the other party that amounts to an acquiescence in that delay, the court will not compel a specific performance. This rule appears to me to be founded in the soundest principles of policy and justice. Its tendency is to uphold good faith and punctuality in dealing. The notion that seems too much to prevail (and of which the facts in the present case furnish an example), that a party may be utterly regardless of his stipulated payments, and that a court of chancery will, almost at any time, relieve him from the penalty of his gross negligence, is very injurious to good morals, to a lively sense of obligation, to the sanctity of contracts, and to the character of this court. It would be against all of my impressions of the principles of equity to help those who show no equitable title to relief.

17 4 De Gex. & Sne., 460.

18 1 Johnson (N. Y.), 370.

"It may be useful, however, before we come to apply the rules of the court to the facts in this case, to look more particularly into the cases on the subject of relieving parties from delays in the performance of contracts for the sale of land.

"It was formerly supposed that the time fixed on for the completion of the contract was quite immaterial, and there are some cases which have given countenance to this idea. The case of Vernon vs. Stephens was a bill brought by a vendee for a specific performance after repeated defaults; but in that case different payments had been made and accepted, and further time had been given after each default, by agreement in writing; and the final default, after the last agreement, arose from the death of the original vendor and a neglect for some time to take out letters of administration, so that the last default was reasonably accounted for; and the case, therefore, proves nothing in favor of a party in default, without excuse and without waiver from the opposite party. The case of Gibson vs. Patterson, in which Lord Hard-wicke is supposed to have held that non-performance at the time was very immaterial, is proved to be most inaccurately reported, and that Lord Hardwicke made no such decision in that case, and the facts admitted of no such deduction. And, indeed, in another case, Lord Hardwicke lays down the true rule on this subject when he says that it is the business of this court to relieve against lapse of time in the performance of an agreement, and especially where the non-performance has not arisen by default of the party seeking to have a specific performance. So it was also held, in the case of Hayes vs. Caryll, as early as 1702, that where one person has trifled or shown a backwardness in performing his part of the agreement, equity will not decree a specific performance in his favor, especially if circumstances are altered.

"I do not perceive, therefore, that in the more ancient cases there is real ground for the opinion that the time stipulated for the performance of a contract is of no moment in this court, and I am at a loss to conceive how such an extravagant proposition should ever have gained currency. It is certainly, and very justly, exploded in the modern decisions."