D. C. 1908 LABELLE v. O'CONNOR. Meredith, C.J. then went to see O'Connor-this was in April-and was told by dent had with him on this occasion a cheque for the whole amount Although the contrary was argued by the learned counsel for the appellants, there is, in my opinion, not the slightest ground for concluding that there was ever any intention on the part of the respondent to repudiate or abandon the contract. The evidence satisfies me that he, at all times, expected and intended to pay what he owed of the purchase money, and that he did not understand that failure to pay the second instalment on the very day on which it became due would disentitle him to have the contract performed by the appellants. The failure to pay it when it became due was, it may be conceded, partly owing to the fact that he had not the money then in hand, but it appears from the evidence that he was possessed of other property, and there is nothing to indicate that if, when he saw O'Connor in December, O'Connor had been willing to receive payment, he could not have procured the money and paid him. The respondent is, therefore, entitled to have the agreement specifically performed by the appellants, unless, according to the terms of the contract, his right to enforce it depends upon his having paid on the very days on which they became due the instalments of the purchase money which remained to be paid; in other words, unless the payment of the instalments on those very days was a condition precedent to the right of the respondent to require a conveyance from the appellants. At law the rule always was that the time fixed for completion was of the essence of the contract. The rule in equity was different, and, although unreasonable delay would of itself conclude either party, the Court would relieve against or enforce specific performance notwithstanding a failure to keep the dates assigned by the contract either for completion or for any of the steps towards completion, if it could do justice between the parties, and if there was nothing in the express stipulations of the agreement or the nature of the property or the surrounding circumstances which In would make it inequitable to interfere with and modify the legal This statement of the law agrees with that expressed by Lopes, The observations of Alderson, B., in Hipwell v. Knight (1835), 1 Y. & C. Ex. 401, at p. 414 et seq., may also be referred to for a statement of the principles to be applied in determining whether time is of the essence of a contract. In none of the numerous cases cited by the learned counsel for the appellants was it determined that, in such a case as this, the mere failure of the purchaser to pay at the appointed time one of several instalments of the purchase money, a substantial part of it having been already paid, and the time for completion not having arrived, was an answer to his claim for specific performance of the contract. Neither in Howe v. Smith (1884), 27 Ch.D. 89, nor in Soper v. Arnold (1889), 14 App. Cas. 429, was there an express stipu D.C. 1908 LABELLE v. O'CONNOR. Meredith, C.J. D. C. 1908 LABELLE V. O'CONNOR. Meredith, C.J. lation that time should be of the essence of the contract, nor did any such question arise. In both cases the conduct of the purchaser had been such as to disentitle him to specific performance, and the main question was whether he was entitled to a return of the deposit he had paid. In both cases the vendor had rescinded the contract on account of the purchaser's delay and default, and had resold the property. In Barclay v. Messenger (1874), 22 W.R. 522, the purchase money was £2,000, £1,000 of which was paid down, and the remaining £1,000 was to be paid on the 31st July, 1873, and the contract provided that if it should not be paid at the appointed time, all moneys previously paid should be forfeited and the contract be null and void. The contract was for the assignment to the purchaser of an agreement for a building lease for eighty years, which had been entered into, and by which the vendors had become bound to erect a house of a specified value within a year from the 25th December, 1872, the right being reserved to the other party to the agreement to put an end to it if the house should not be completed within two months from the 25th December, 1873, and by the terms of his contract the purchaser assumed the liability of the vendors under the agreement for the building lease. The Master of the Rolls held that, having regard to the nature of the contract and the provision that if payment of the second £1,000 was not made on the appointed day all moneys paid previous to such default should be forfeited, and the contract become null and void, it was "impossible to put any other interpretation on the contract than that both parties intended that the date of payment of the £1,000 should be of the essence of the contract." He said further: "Looking to the nature of the subject-matter and the conduct of the parties, quite independently of the question whether this is a case in which time was of the essence of the contract, the plaintiffs have not used that diligence which it was incumbent upon them to use to obtain the aid of a court of equity": p. 524. In Seaton v. Mapp (1846), 2 Coll. C.C. 556, the premises consisted of a leasehold public house, and the conditions of sale provided that if objections were not delivered within four days after the delivery of the abstract, the purchaser should be deemed to have accepted the title, and that time should be considered as of the essence of the contract for the purpose of the condition; and it was held by Vice-Chancellor Knight Bruce that, having regard to the nature of the property, the vendors should be held to the strict performance of the contract, and that not having cleared off an objection to their title by the time fixed by the contract for that purpose, the purchaser was justified in rescinding the contract. Referring to the terms of the conditions of sale which I have mentioned, the Vice-Chancellor said: "Vendors, no doubt, have a right to guard themselves in this manner, and if purchasers will, in favour of them, consent to be bound by such conditions, they must be held liable to the consequences." Mills v. Haywood (1877), 6 Ch.D. 196, need not be referred to except for the statement of Cotton, L.J. (p. 202), that it was "a well-established principle that a party cannot call upon a court of equity for a specific performance unless he has shewn himself ready, desirous, prompt, and eager," and that "this rule is specially applicable where the subject-matter of the contract is of a somewhat speculative and fluctuating value, as the tavern, the subject of the present suit, must necessarily be." Sugden, in his work on Vendors and Purchasers, 14th ed., p. 268, says: "It was, at one time, a considerable question, whether equity would permit the parties to make time the essence of the contract. But it is now settled that if it clearly appears to be the intention of the parties to an agreement, that time shall be deemed of the essence of the contract, it must be so considered in equity." In Hudson v. Temple (1860), 29 Beav. 536, a provision of the conditions of sale that if, from any cause or circumstance whatever, the purchase should not be completed on the day named, the vendor should be at liberty to annul the contract, was held by Sir John Romilly to be an express stipulation making time of the essence of the contract. There was the additional circumstance, that the character of the property sold of itself made time of the essence of the contract, and the Court being of opinion that the contract was annulled by the plaintiff (the vendor) by a notice he had given on the 11th October, 1860, a perpetual injunction against proceedings at law was decreed, and a conveyance which had been executed by the vendor was directed to be cancelled. D. C. 1908 LABELLE V. O'CONNOR. Meredith, C.J. D. C. 1908 LABELLE v. O'CONNOR. Meredith, C.J. In Hunter v. Daniel (1845), 4 Hare 420, referring to a provision of the agreement that if the purchaser should not in all respects perform the several covenants and agreements on his part thereinbefore contained, and in the performance of which it was thereby declared that the period thereinbefore limited for such performance was absolutely essential, and that time should be of the essence of the contract, the vendor might rescind, the Vice-Chancellor (Sir James Wigram) said (p. 432) that nothing could be "more express upon the agreement, nor more reasonable, under the circumstances, than that time should be of the essence of the contract." In Roberts v. Berry (1853), 3 DeG. M. & G. 284, Turner, L.J., says (p. 291): "Time may be made of the essence of a contract, by express stipulation between the parties, by the nature of the property, or by surrounding circumstances, shewing the intention of the parties that the contract was to be completed within a limited time." Cairns, L.J., in Tilley v. Thomas (1867), L.R. 3 Ch. 61, says (p. 67): "A court of equity will indeed relieve against, and enforce, specific performance, notwithstanding a failure to keep the dates assigned by the contract, either for completion, or for the steps towards completion. if it can do iustice between the parties, and if (as Lord Justice Turner said in Roberts v. Berry) there is nothing in the 'express stipulations between the parties, the nature of the property, or the surrounding circumstances,' which would make it inequitable to interfere with or modify the legal right. This is what is meant, and all that is meant, when it is said that in equity time is not of the essence of the contract." McSweeney v. Kay (1868), 15 Gr. 432, may also be referred to for a statement as to the effect in a court of equity of time being made the essence of a contract: p. 439 et seq. In none of the cases to which I have referred did the exact question which is presented for decision in the case at bar arise. Howe v. Smith, 27 Ch.D. 89, and Soper v. Arnold, 14 App. Cas. 429, upon which great reliance was placed by the learned counsel for the appellants, and to which I have before referred, were both cases in which the purchaser had paid a deposit and had failed to complete his purchase by payment of his purchase money, and the conditions of sale in both cases provided that if the pur |