new contract was entered into, and before January 20, 1873, the original agreement could have been forfeited by defendant for nonpayment, because the new agreement, as to the time of payment, took the place of the old. That it was competent for the parties thus to change their contract cannot be doubted. Upon the failure. of plaintiff to pay at the time specified by the new contract, was the old contract revived? Surely not, for it had been superseded by the new contract. The old contract, as to the time of payment, had ceased to be of force; the parties rested upon the new one. This is very plain. Does the new contract make time of its 'essence?' Surely not; it is nothing more than a simple agreement that payment shall be made at the time specified, at 10 per centum per annum interest. The case is simply this: a contract making time of its 'essence' is superseded by another contract that has no such provision; this is all there is of it. We surely will not be expected to cite authorities to support the position that it is competent for parties thus to change their contracts, and that the construction we put upon the new contract is correct. These positions are based upon elementary principles of the law." In St. Clair v. Hellweg (1913) 173 Mo. App. 660, 159 S. W. 17, it appeared that the contract for the sale of land was to have been completed ten days after its execution. An abstract of title was furnished three days after the execution of the contract. The purchaser did not return the abstract until after the time set for completion, and then objected to the title, but declared the deal off, and demanded the return of his earnest money. The court held that where the condition that time was of the essence had been waived, the courts would not allow the other party to suffer any unreasonable loss by the waiver, saying: "Where time is of the essence of the contract, courts will enforce a strict compliance within such time; but the action of the parties may constitute a waiver of this element altogether, and courts will not allow either party, by his ac4 A.L.R.-52. tion or inaction indicating a waiver, to enforce unreasonable loss on the other party. Scannell v. American Soda Fountain Co. (1901) 161 Mo. 606, 61 S. W. 889; Mastin v. Grimes (1885) 88 Mo. 478. If plaintiff intended to stand on the ten-day limit, he should have been correspondingly prompt in making known his objections to the title. His statement, on cross-examination, that it was then to be $200 or nothing, and the fact that he did not go back to Pierce City until the eleventh day, and then demanded the return of the $200, and stated that it was too late to remedy the defects in the abstract, coupled with the fact that the evidence shows that he had purchased a place at Exeter for $1,200 between the time of making this con tract and the date on which he notified the defendant that he wanted the $200 returned, would indicate that the deal, not having been completed within the ten days, was not the ground on which he was seeking to repudiate this contract. The further fact that, on being asked for the abstract that it might be corrected, he refused to give it up to the defendant, is convincing that he at that time did not want the abstract to show good title, and was not willing to give the defendant an opportunity to make it show good title, provided it was within defendant's power to do so." In Hausman v. Johnson (1907) 32 Pa. Super. Ct. 339, it appeared that an agreement was entered into between the plaintiff and the defendant for the sale and purchase of certain tracts of land, the contract to be completed sixty days after its execution. On the examination of the title, it was found that there was a ground rent which had never been extinguished. About two months subsequent to the execution of the agreement, the plaintiff gave notice that the title was not free and clear of encumbrances, and twenty days later she gave notice that she desired the return of her purchase money. The court held that, the time for performance having passed, by the consent of the parties the time was waived, and the vendor was entitled to a reasonable time in which to clear the title. In Moore's Estate (1899) 8 Pa. Dist. R. 84, affirmed in (1899) 191 Pa. 600, 43 Atl. 474, it appeared that an agreement was made for the sale of a certain tract of land on a day certain. Neither party performed on that date, but the vendor continuously extended the time, encouraging the complainant to obtain the necessary money. After the vendor's death, his executors refused to perform the contract. The court held that the vendor had waived the time of performance, and therefore the vendee was entitled to performance within a reasonable time thereafter. It was said: "After waiver, or where the agreement was originally indefinite, time does not become of the essence until notice be given by one of the parties, insisting upon compliance within a reasonable time. The vendee succeeded, as the evidence shows, in making all the necessary arrangements in New York for carrying out his part of the contract, and performance was only prevented by the sickness and subsequent death of the vendor. As he has shown himself, at all times, 'ready, desirous, prompt, and eager to perform the contract,' he ought not to be made to suffer the consequences of the complication and delay thus arising." In Hatton v. Johnson (1876) 83 Pa. 219, it appeared that on the date set for the payment of the final instalment and delivery of a deed the vendee asked for an extension of time. On a subsequent date he refused to accept the deed tendered. In an action to recover the money paid on the contract, the court held that once a day certain had been designated for the completion of a contract for the purchase of land, and the time had been allowed to pass without performance, the vendors were entitled to a reasonable time in which to perfect their title. In Irvin v. Bleakley (1870) 67 Pa. 24, it appeared that neither the purchaser nor the vendor offered to perform according to the terms of the contract. It was held on this point that where the period had passed for performance by the parties, the time for performance became indefinite, the court saying: "No money was paid or demanded at the end of the sixty days, nor was a deed tendered by the vendor. That period having passed, the time for performance by the parties became indefinite, but mutual and dependent whenever it should occur. In this category, whichever of the parties first desired to enforce performance was bound to regard his part of the contract as a condition precedent, and perform or offer performance in order to enable him to proceed to enforce the contract." In Opsjon v. Engebo (1913) 73 Wash. 324, 131 Pac. 1146, it appeared that the vendee encouraged the vendor to prosecute a suit to remove a cloud on his title, accepted the first instalment of interest, and consented to a further delay. Later, he sought to rescind the contract on the ground that time was of the essence. It was held that after a waiver of the time fixed for performance, the vendor was entitled to a demand and a reasonable time within which to perform. The court said: "The rule is well settled in this state that, after a vendor has waived the essence clause of a contract, the purchaser will not be in default until after a demand has been made upon him for a compliance with his contract, and a reasonable time has elapsed in which to comply with the demand. . . . The appellant, having encouraged the prosecution of the suit to quiet title to the lot, and having acquiesced in the delay in tendering the deed and abstract of title, was not in a position to assert a breach of the contract upon the part of respondents in failing to convey the lot at the time agreed upon." But in Drown v. Ingels (1892) 3 Wash. 424, 28 Pac. 759, it appeared that time was made of the essence of the contract for the purchase of land. In case of the nonpayment of any of the instalments the vendor had the right to declare a forfeiture. On the date set for the first instalment the purchaser asked for an extension of time. The extension was granted by the vendor, provided the purchaser should, at a stated day, pay a larger sum, which would be in full for the land. The money was not paid at the time, and was not tendered for several days thereafter. In the meantime the vendor sold the property to another. It was held that, by the extension, the vendor did not waive the right of forfeiture. The court said: "It is, however, strenuously argued on the part of appellant that the negotiations at the time of the extension of the time of payment constituted an entirely new contract, and that time was in no sense of the essence thereof. With this contention we are unable to agree. The intention of the parties must always be given force, and when we take into consideration all the circumstances surrounding the parties at the time of this transaction, we cannot for a moment think that there was an intention on the part of defendant Ingels, when making this contract or extending the old one, to waive any of the conditions inserted in said old contract for his protection. By the terms of the extension he deducted from the total balance of purchase price due, one third thereof, and agreed to accept in full payment for the land that much less than he would have been entitled to by the terms of said contract; and it is clear that one of the main considerations for such deduction was the prompt payment at the exact time named; and to hold that, instead of having made it certain that he would either receive the sum named on that day or be entitled to a forfeiture of the contract, he had waived the element of time which was theretofore incorporated therein, and made it possible for the other party to very much postpone such payment, and at the same time preserve her rights thereunder, would not be reasonable. We think the extension above stated was made subject to all the conditions of the written contract existing between the parties, excepting so far as they were expressly modified by the agreement then entered into. The above provision as to time, and forfeiture for want of strict compliance. therewith, was in force, and, under it and the facts found by the court be low, we think defendants were absolved of their duty to convey to plaintiff according to the terms of said contract." In Cosby v. Honaker (1905) 57 W. Va. 512, 50 S. E. 610, it appeared that a day certain was fixed for the completion of a contract for the purchase of lands. On that date the vendee was not ready to perform, and the vendor granted an extension of time. Thereafter, several other extensions were granted to the vendee, but every time the agent of the vendor said he would be ready to complete, he disappointed the vendee, and finally, after several such disappointments, informed the vendee that he would not complete the contract. The court held that the vendee was entitled to a reasonable notice fixing a time within which to perform, saying: "The only time that he [vendor] gave notice to the plaintiff that the deal must be closed within a specified time was when he notified her that it must be done on the 26th of March, when defendant would be in Bluefield; but his notice did not indicate that unless she complied with her part of the contract it must be abandoned; but, on the contrary, he called upon her two days after the time fixed in his notice, on the 28th, according to his own testimony, then waiving the benefit of it by giving the plaintiff still further time in which to comply with her contract, and when he finally attempted to rescind the contract by making a tender of the money and its interest which she had paid on account of the contract, it was without any notice to the plaintiff whatever that he was proposing to rescind. 'Where the time of performance is fixed by the contract, the question is whether it is of the essence of the contract or not, and this is a question of construction.' 9 Cyc. 604. Time is not of the essence of a contract to convey land at a future day, unless the language of the contract clearly indicates that it was so intended by the parties.' Knott v. Stephens (1874) 5 Or. 235. In Abbott v. L'Hommedieu (1877) 10 W. Va. 677 (syl. 7), it is held: "Time is not, in courts of equity, considered, ordi narily, of the essence of a contract plies, of course, in a case where time In Ex parte Gardiner (1841) 4 Younge & C. Exch. (Eng.) 503, 10 L. J. Exch. in Eq. N. S. 46, it appeared that a sale was to have been completed on a certain date, but the purchaser did not pay the purchase money on that date. He was, however, permitted to remain in possession. Subsequently he assigned the contract to a railway company, and tendered the purchase money, but the vendors refused to accept same. The railway company thereupon instituted a suit to compel specific performance. The court held that a reasonable time should be allowed in which the vendee might perform. But in Seton v. Slade (1802) 7 Ves. Jr. 265, 32 Eng. Reprint, 108, 6 Revised Rep. 124, however, it appeared that the defendant had informed the plaintiff's auctioneer that if the contract was not completed on the date set he would consider the contract rescinded. The abstract was not furnished until a few days before the date set for completion. After the date set for completion, the defendant returned the abstract and refused to perform. The court held that, having accepted the abstract so late, the defendant thereby waived the time fixed and was bound to complete the contract. In Smith v. Burnam (1795) 2 Anstr. 527, 145 Eng. Reprint, 956, it appeared that the defendant agreed to purchase a certain estate on a day certain. The vendor did not produce his title until several days later, when the defendant accepted the same, but, finding that there was litigation pending against the property, refused to complete the contract and instituted an action to recover the deposit paid. In a suit to restrain that proceeding, and to obtain a decree for specific performance, the court held that by accepting the abstract when presented to him, the defendant consented to the delay, saying: "The defendant did not make any objection as to the delay, when the abstract was presented to him; by proceeding to examine it he goes on in pursuance of the agreement, and waives the objection. The validity of the title cannot be determined in this stage of the cause; nor can the defendant determine that question. To allow him to proceed on the action would be to let him rescind the contract." Where there has been an extension of the time for the completion of a contract, and time still remains of the essence, such an extension does not constitute a waiver of the condition, but merely substitutes the extended time for the original. Barclay v. Messenger (1874) 43 L. J. Ch. N. S. (Eng.) 449, 30 L. T. N. S. 351, 22 Week. Rep. 522. So, in Parkin v. Thorold (1851) 2 Sim. N. S. 1, 61 Eng. Reprint, 239, affirmed in (1852) 16 Beav. 59, 51 Eng. Reprint, 698, 22 L. J. Ch. N. S. 170, 16 Jur. 959, 6 Eng. Rul. Cas. 503, it appeared that on the date set for performance for the sale of certain lands the vendor was not ready to complete. Prior to that date he requested an extension, which was granted. In the letter granting the extension, the solicitor of the purchaser notified the vendor that, if the contract was not completed on the extended date, the purchaser would consider the contract at an end. The contract was not completed at the date so extended, whereupon the purchaser's solicitor notified the vendor that the contract was at an end, and demanded the deposit. Subsequently, the vendor instituted a proceeding in equity to obtain specific performance. The court held that the plaintiff, having defaulted on the extended date, was in the same position as if no extension had been granted him. In Norman v. McMurray (1913) 10 D.L.R. 757, 4 Ont. Week. N. 1256, 24 Ont. Week. Rep. 532, it appeared that after the date set for completion of a contract to sell land the defendant still negotiated with plaintiffs. The plaintiffs, were told by the agent of both parties that it would be satisfactory to the defendant if the contract was closed by the following Saturday. It was not completed on that day, and the defendant notified the plaintiffs that the contract was at an end. The court held that, the time fixed having been allowed to pass, the defendant should have given notice, and allowed a reasonable time for plaintiffs to complete. In Foster v. Anderson (1907) 15 Ont. L. Rep. 362, affirmed in (1908) 16 Ont. L. Rep. 565, which is affirmed in (1909) 42 Can. S. C. 251, it appeared that up to the date set for the performance the solicitors of the vendor had not informed the purchaser that they had a deed executed by the vendor in their possession. On the date set therefor, the vendee sent a draft deed to the vendor's solicitor to be forwarded to the vendor, and still nothing was said. The vendor thereupon defended in the action for specific performance, on the ground that the vendee did not perform within the time. The court held that although time was made of the essence, still the vendor could not claim the benefit of that clause, if he himself had been guilty of delay, and that reasonable time should be allowed, saying: "Assume that time was made essential as to the completion of the contract, the rule of court is that the vendor cannot claim the benefit of the term, making time of the essence, if he himself has been guilty of laches,—if he has failed to bestir himself when he should have been doing, this policy of inactivity may inure to the exculpation of the other side. The court may then consider that the time element has ceased to be of an essential character, and that reasonable diligence only has to be regarded." In Oppenheimer v. Humphreys (1890) 31 N. Y. S. R. 622, 9 N. Y. Supp. 840, affirmed without opinion in (1891) 125 N. Y. 733, 26 N. E. 757, it appeared that a date was set for the completion of a contract for the sale of land. On the date set for completion, the purchaser extended the time in order to enable the vendors to perfect the title, and on such extended date a further extension was granted, at which time a further extension was refused, and the purchaser instituted an action for the recovery of the earnest money. It was held that while in equity the courts sometimes would disregard the provision of the contract that time is of the essence, depending on the facts of |