would still stand, and it could not have a decree declaring that it is the owner in fee, and that defendant has no interest, unless the conduct of the defendant in the matter has waived a tender, or amounts to a refusal to perform in any event, or an abandonment of the contract."

b. Illustrations.

In the leading case of Boone v. Templeman (1910) 158 Cal. 290, 139 Am. St. Rep. 126, 110 Pac. 947, the facts were that an agreement was entered into by which the seller agreed to convey land to the buyer on payment of the purchase price, which payment was to be made in instalments at specified times. If any instalment of principal and interest was not paid within sixty days after it became due, the whole of the unpaid portion of the price would, at the election of the seller, forthwith become due, in which event the seller was given power to sell the land in order to realize the amount unpaid, and all previous payments were thereupon to become forfeited. Time was declared to be of the essence of the contract. The buyer made the initial cash payment and several monthly payments on account, but only one of these payments was made when due, the others being made after the time fixed by the contract. The buyer finally stopped making payments, and the seller, without any previous demand for performance, gave the buyer a written statement purporting to rescind the contract. The buyer thereupon tendered in full the balance due, on condition that the seller should perform on his part by executing the necessary deed. On the seller's failure so to do the buyer filed a bill for specific performance. It was held that the seller's conduct in accepting and retaining the payments made amounted to a waiver of the condition that time should be of the essence of the contract, and of the right to declare a forfeiture for nonpayment.

The contract under consideration in Hurst v. Thompson (1882) 73 Ala. 158, provided that, on the failure of the purchaser to pay an instalment of the purchase money at the time it became due, the contract should cease to be

one of sale, and become a lease for a stated period, and the instalment then falling due should be considered as rent. The purchaser paid only a part of an instalment at the time it became due, but soon thereafter paid the balance, which was received by the vendor without objection. It was held that the vendor, by receiving such balance, waived his right to claim a forfeiture for the vendee's failure to pay the instalment when it became due.

See to the same effect, Stewart v. Cross (1880) 66 Ala. 22; Davis v. Robert (1889) 89 Ala. 402, 18 Am. St. Rep. 126, 8 So. 114; Jones v. Hert (1915) 192 Ala. 111, 68 So. 259; Friar v. Baldridge (1909) 91 Ark. 133, 120 S. W. 989; Pearson v. Brown (1915) 27 Cal. App. 125, 148 Pac. 956.

So it was shown in Braddock v. England (1908) 87 Ark. 393, 112 S. W. 883, that a vendor continuously accepted payments on the purchase price after the date specified, and failed to declare a forfeiture until after the property had been levied on by a creditor of the vendee. It was held that the vendee could not, under these circumstances, declare a forfeiture as against the purchaser at the execution sale, the court saying: "Braddock's course of conduct in habitually permitting payments to be made after default amounted in equity to a waiver of the forfeiture which he had theretofore been entitled to have demanded, and this waiver continued until after England had acquired rights in the property by levy of execution thereon. There could be no nunc pro tunc forfeiture."

Similarly it appeared in Hermosa Beach Land & Water Co. v. Law Credit Co. (1917) 175 Cal. 493, 166 Pac. 22, that a contract for the sale of land provided for payments of the purchase price in instalments at specified times. It was held that the acceptance by the vendor of payments on account of interest on the unpaid balance long after the last instalment became due constituted a waiver of the vendor's right to declare a forfeiture for failure to make payments on time.

In Hayt v. Bentel (1913) 164 Cal. 680, 130 Pac. 432, it appeared that the

plaintiff and the defendant, some time previous to the institution of the action, had entered into a contract for the sale of real estate, which contract was rescinded for defect in title. The plaintiff thereupon brought suit to recover the purchase money paid under the contract. The claim was made that the plaintiff was in default in payments under the contract, and this was advanced as a defense to the action. It was held that there was no merit in this claim, since the evidence showed that the payments, although made after the expiration of the time specified in the contract, were accepted without question by the vendor.

Likewise, in Avery v. Kellogg (1836) 11 Conn. 562, it was shown that the defendant agreed to convey a farm to the plaintiff on payment of the purchase price, which was to be paid in stipulated amounts at definite times. The plaintiff did not pay the first instalment when due, but subsequently made a payment of part of the instalment, which the defendant accepted and retained. Before the last instalment became due the plaintiff tendered to the defendant the entire amount of the purchase price, demanding a deed. The defendant refused to accept the money or execute a conveyance, and the plaintiff thereupon filed a bill for a decree of redemption or specific performance. Holding that the acceptance of the payment after the time specified constituted a waiver, the court said: "The defendant, then, having received this money on account of the payment due on the 1st of April, must be considered as having waived any advantage from the omission of the plaintiff to make the first payment at the day."

In Shouse v. Doane (1897) 39 Fla. 95, 21 So. 807, it appeared that the first two notes on the purchase price of certain property were not paid promptly; that the vendor collected them with great difficulty and trouble, in fractional amounts, at irregular times, and that the notes were not fully paid until long after maturity. In reversing the lower court, which denied a decree for specific performance to the vendee, the court held that although time was made of the essence of the contract,

and the right was given to declare a forfeiture for default in payment, the vendor, by accepting payments past due, waived the condition as to all defaults then existing.

In Hudson v. Duke (1857) 21 Ga. 403, a bill in equity was filed to compel the defendant to perform specifically an agreement for the sale and conveyance of a parcel of land. It appeared that the defendant executed a bond for title, agreeing to give title to the land in question on payment of the purchase price, which was to be paid by an initial cash payment and two deferred payments on specified dates. The first cash payment was made as agreed, but the second payment was not made at the time specified, the complainant's assignor paying $50 on account of this note about two months after it became due. defendant accepted and retained this payment. The bond was thereafter assigned to the complainant, who immediately tendered to the defendant the balance of the purchase money, exhibited the bond, with the transfer thereon, and demanded title for the land, which the defendant refused to execute. It was held that, notwithstanding time was of the essence of the contract, the action of the defendant in accepting and retaining a partial payment long after the note fell due was a waiver of the failure to pay the note punctually.

The

In Watson v. White (1894) 152 III. 364, 38 N. E. 902, wherein it appeared that the vendor in an instalment contract for the sale of real estate in which time was distinctly declared to be essential, accepted a payment on the purchase price which was not for the amount or at the time specified, the court said: "But an agreement that time shall be of the essence of a contract may be waived or set aside, and more especially so in the contemplation of a court of chancery, either by the mutual consent or conduct of the parties, or by the consent or conduct of the party in whose favor and for whose benefit such stipulation is made."

In Stow v. Russell (1864) 36 III. 18, the court, in holding that a waiver of the time stipulation was effected by

the vendor's acceptance of overdue payments, said: "The first payment was made as stipulated. Other payments were made, not punctually, but as they were accepted; that was a waiver of the want of punctuality as to the particular day, up to the 1st day of September, 1854."

See to the same effect, Smith v. Smith (1870) 55 III. 204; Eaton v. Schneider (1900) 185 Ill. 508, 57 N. E. 421.

It appeared in Robberson v. Clark (1913) 173 Mo. App. 301, 158 S. W. 854, that a contract for the sale of land provided for the payment of the purchase price in monthly instalments, the vendor agreeing to deliver a warranty deed to the property on completion of the payments, and time being made of the essence of the agreement. The vendee being in default in payments, the vendor accepted a payment for the current month, giving the vendee a memorandum to present at the bank which was making the collections, directing it to allow the vendee to continue his monthly payments. It was held that the vendor waived the right to declare a forfeiture for past default in making payments.

So, in Randolph v. Ellis (1912) 240 Mo. 216, 144 S. W. 483, an action to quiet title, the defendant admitted title in the plaintiff, but claimed under a contract with the plaintiff's grantor, by which it was agreed that she should occupy the premises as a tenant for eighty-five and one third months, paying $7.50 per month rent. The contract provided that at the end of that time, and on payment in full of the rent, the plaintiff's grantor was to convey to her, and that a failure to pay $7.50 each month should render the contract void. Various and numerous payments were made at irregular times in small amounts, averaging about $5 or $6 at a time. The court said: "Here, by the long-continued conduct of both parties, the provision for the payment of $7.50 each month was disregarded, and payments were repeatedly made at irregular intervals and of different amounts. The forfeiture was waived and cannot be insisted on here."

In Merriam v. Goodlett (1893) 36 Neb. 384, 54 N. W. 686, wherein it appeared that a vendor accepted interest after the date on which the purchase money was to be paid, it was said: "There is no circumstance, therefore, that would make time the essence of the contract, and thus rob the purchaser of his estate. But even if time was the essence of the contract, it has been waived by the acceptance of the interest while the Goodletts were in default. They are, therefore, entitled, upon payment of the purchase price, to specific performance of the contract."

In Paulman v. Cheney (1885) 18 Neb. 392, 25 N. W. 495, the action was brought to enforce specific perform

ance of an instalment contract for the sale of land. Under the contract time was made of the essence, and provision was made for a forfeiture on failure to make payments at the time specified. The vendor accepted two overdue payments, and thereafter, no further default having been made by the vendee, returned all notes to the vendee and declared the contract forfeited. The vendee thereupon tendered the full amount of the purchase price and demanded a deed, which the vendor refused to deliver. It was held that the vendor's acceptance of overdue payments was a waiver of the conditions as to all defaults then existing, and the vendor could not, by the mere return of the notes to the purchaser, where there had been no subsequent default, terminate the contract.

In Shilanski v. Farrell (1914) 57 Pa. Super. Ct. 137, an action of assumpsit brought by a vendee to recover purchase money paid under an instalment contract for the sale of real estate, it appeared that by the terms of the contract $10 was to be paid on the 7th day of each month, time being expressly declared essential. Payments were accepted by the vendor at irregular intervals, the last payment of $30 being tendered and accepted when the vendee was in default over one year. "Certainly," the court said, "the acceptance of the last payment of $30, in the absence of any qualifying fact

or circumstance, raised the conclusive inference that the defendants intentionally abandoned and relinquished the right to enforce a forfeiture for previous failures to pay on the day." In Kohler v. Lundberg (1919) Utah,, 180 Pac. 590, the court had under consideration an instalment contract for the sale of real estate in which time was declared to be of the essence, and containing a stipulation providing for a forfeiture in case payments on the principal and of the interest were not punctually made. It was held that the vendors, by accepting interest at a later day than provided for in the contract, and by failing to inform or advise the purchaser of their intention to declare or insist on a forfeiture, had waived the right to a forfeiture.

II. Waiver of subsequent default.

a. General rule.

A vendor in a contract for the sale of real estate, in which time is an essential element, by accepting one or more payments subsequent to the time specified in the agreement, does not necessarily waive the vendee's delinquency as to future payments, or the right to insist on strict performance in the future; and on the vendee's default in subsequent payments the vendor may declare a forfeiture.

Eastern Oregon

United States. Land Co. v. Moody (1912) 119 C. C. A. 135, 198 Fed. 7, reversing (1910) 180 Fed. 532.

Alabama.-Nelson v. Sanders (1898) 123 Ala. 615, 26 So. 518; Davis v. Folmer (1919) - Ala. -, 83 So. 60. California.-De Bairos

V. Barlin (1920) Cal., 190 Pac. 188; Boone v. Templeman (1910) 158 Cal. 290, 139 Am. St. Rep. 126, 110 Pac. 947; McAdams v. Felkner (1903) 140 Cal. 354, 73 Pac. 1064.

Idaho. Bowers v. Bennett (1917) 30 Idaho, 188, 164 Pac. 93.

Illinois. Stow v. Russell (1864) 36 Ill. 18; Phelps v. Illinois C. R. Co. (1872) 63 Ill. 468; Fox v. Grange (1913) 261 Ill. 116, 103 N. E. 576. Iowa. Mahoney v. McCrea (1898) 104 Iowa, 735, 74 N. W. 699.

Kansas. Kliesen v. Equity Exch.

Mercantile Asso. (1917) 101 Kan. 138, 165 Pac. 650.

Kentucky.-Baker v. Smith (1901) 22 Ky. L. Rep. 1878, 61 S. W. 1014. Massachusetts.-Keefe v. Fairfield (1904) 184 Mass. 334, 68 N. E. 342.

Minnesota.-True v. Northern P. R. Co. (1914) 126 Minn. 72, 147 N. W. 948. Nebraska.-Reynolds v. Burlington & M. R. R. Co. (1881) 11 Neb. 186, 7 N. W. 737; Lent v. Burlington & M. R. R. Co. (1881) 11 Neb. 201, 8 N. W. 431.

Oregon.-Maffet v. Oregon & C. R. Co. (1905) 46 Or. 443, 80 Pac. 489; Gray v. Pelton (1913) 67 Or. 239, 135 Pac. 755.

Pennsylvania.-Shilanski v. Farrell (1914) 57 Pa. Super. Ct. 137.

Washington.-Cash v. Meisenheimer (1909) 53 Wash. 576, 102 Pac. 429; Rose v. Rundall (1915) 86 Wash. 422, 150 Pac. 614; White Invest. Co. v. Demarco (1915) 89 Wash. 34, 153 Pac. 1060.

"The simple act of receiving a payment after the day when the payee was bound to accept it, without more, is no excuse for laches as to future payments. The effect of the acceptance is exhausted upon the payment made, and as to those following, the provisions of the contract are left to operate with unimpaired force." Lent v. Burlington & M. R. R. Co. (Neb.) supra.

"In his brief appellant insists that because, on April 24, 1908, respondent accepted interest due April 5th, he waived time as being of the essence of the contract. We hold, however, that he waived it in regard only to this payment, but not as to future payments." Bowers v. Bennett (Idaho) supra.

"We find [no decision] that goes so far as to hold that the mere acceptance of one payment after its maturity will waive the right to declare a forfeiture if default occurs in subsequent instalments." Boone v. Templeman (Cal.) supra.

In Phelps v. Illinois C. R. Co. (1872) 63 Ill. 468, a suit to enforce specifically a real estate contract in which time was of the essence, the court said: "It is urged by appellant that the re

ceipt by the company of money on a payment which was past due operates as a waiver of the right to declare a forfeiture. The argument amounts to this, that inasmuch as the company accepted payments which were long due, therefore the company cannot insist upon the terms of the contract as to the other payments. We do not see the force of the argument."

In McAdams v. Felkner (Cal.) supra, an action of ejectment, the vendee contended that although time was of the essence of the contract, this provision had been waived by the vendor's acceptance of payments past due. In holding that this waiver did not apply to subsequent instalments, the court said: "The facts that defendant had paid some part of the purchase price, and had made some improvements on the premises and that defendants had been allowed to make some previous payments after they had become due, do not, under the terms of the contract constitute a defense to this action."

In Baker v. Smith (Ky.) supra, an action to enforce a vendor's lien, the court said: "The mere failure of appellees to take advantage of the first default by appellant was not prejudicial to them, and did not affect their right to rely upon such omission at the time this suit was brought, especially as the testimony in the case shows that the number of these defaults increased as the years went by; and that he failed to pay 109 demands in the year 1898, in which the suit was instituted. As appellant first neglected to perform the duties imposed upon him by the contract, appellees were entitled to avail themselves of the contract provisions arising upon such default, and ask a sale of the coupons held by them as collateral, and for an enforcement of their vendor's lien against the real estate."

In True v. Northern P. R. Co. (1914) 126 Minn. 72, 147 N. W. 948, the court in holding that the acceptance of one instalment after the date specified did not preclude the vendor from insisting on prompt payment of subsequent instalments, said: "Plaintiff contends that defendant waived its right to de

clare these contracts forfeited by accepting a second payment on one of them some three months after it became due. Clearly this was not a waiver as a matter of law."

In White Invest. Co. v. Demarco (1915) 89 Wash. 34, 153 Pac. 1060, a vendee in an instalment contract in which time was made of the essence defaulted in payments, and thereupon the vendor brought action to terminate the contract. By agreement of the parties the back payments were made and the action was dismissed. Afterward the vendees were again in default, and after a demand had been made on them, and they had refused to pay, action was brought by the vendor to quiet title to the property. In holding that there was no waiver, Mount, J., said: "The appellants argue in their brief that, because the respondent accepted payments after default had been made, the respondent is not now entitled to hold the appellants strictly to the terms of the contract. But, as we have seen above, the only time the respondent accepted payments in default was after an action had been brought to set aside the contract. That action was settled by agreement by payment of the amount then past due, and the action was then dismissed. After that time, the appellants were again in default, and refused upon notice to make further payments. This fact takes the case out of the rule contended for by the appellants, that the respondent has waived the terms of the contract by a course of conduct."

b. Qualification of rule.

If the vendor in a contract for the sale of land, whereby time is made of the essence, repeatedly receives payments after the date when they are due, and thereby establishes a course of dealing inconsistent with insistence on the strict performance of the contract, he cannot thereafter declare a forfeiture for a failure to make a payment promptly, unless he has given notice to the vendee of his intention to require prompt payment in the future. California. - Noyes V. Schlegel (1908) 9 Cal. App. 516, 99 Pac. 726; Boone v. Templeman (1910) 158 Cal. 290, 139 Am. St. Rep. 126, 110 Pac. 947;