Sim Asia, Appellant, vs. John C. Hiser, as Administrator of Edwin P. Hiser, deceased, and Maria C. Hiser, Appellees, 38 Fla. 71

Liddon, J.: The specific performance of a contract for the sale lands is not a matter of right in either party; but the right to such performance rests in the sound reasonable discretion of a court of equity. While equity does not regard time as of the essence of such contract unless it is so expressly stipulated, yet it will require of one who seeks the specific performance of such an agreement that he shall not' be guilty of unreasonable delay.

While time may not be of the essence of the contract, the principle is well established that where one party to a contract is guilty of laches and negligence to perform the same, the other party may by giving notice fix a reasonable time for the performance of the contract, and has the right to treat the contractas abandoned, if not complied with in such limited time. Knox vs. Spratt, 23 Fla. 64, 6 South. Rep. 924; Chabot vs. Winter Park Co., 34 Fla. 258, 15 South. Rep. 756; Tate vs. Pensacola, G. L. & D. Co., 37 Fla. 439, 20 South. Rep. —.

Stating the last proposition a little differently: Although time may not be of the ■essence of the original contract, it may subsequently be made so by an express notice given by a party who is not in default to the other , party who is in default, requiring the contract to be performed or rescinded within a stated time, which must be a reasonable time according to the circumstances of the case. 2 Warvelle on Vendors, p. 848; King vs. Ruckman, 20 N. J. Eq. 316; Pomeroy on Specific Performance, sec. 395. The notice required by the rule stated above need not necessarily be in writing.

In such cases a verbal notice has been held sufficient. Nokes vs. Lord Kilmorey, 1 De Gex & Sm. 444, text, 458; Pomeroy on Specific Performance, sec 397; Fry on Specific Performance, sec. 729. The rule that time may be made ■of the essence of the contract has application not only to cases where a single payment in full is provided by the contract, but to cases of payment by installments, and the time of performance may be made material as to the payment of each and every successive installment. Steele vs. Biggs, 22 Ill. 643, text 654 and authorities there cited.

A party seeking the aid of a court of equity must show that he has acted with promptness and diligence; while time is not of the essence of the transaction, and unreasonable delay in the assertion of his rights not sat-isfactortlv accounted for, will be considered in equity as an acquiescence in the refusal of the other party to the contract to convey, and as an abandonment of his equitable right. Knox vs. Spratt, 23 Fla. 64, 6 South. Rep. 924.

Testing the complainant’s case by the application of the principles above stated to the facts thereof, it is-clear that he was not entitled to the relief prayed for in his bill of complaint. It is by no means clear, according to the terms of the original agreement between the parties, that time was not of the essence of such contract. The fact that defendants gave a bond to execute a deed upon the payment by the complainant of the different installments of purchase money according to agreement did not of itself make time of the essence of the transaction.

But the terms of this bond, taken in connection with the parol agreement and negotiations of the parties, or such negotiations and agreements without. the bond, are probably sufficient to demonstrate that time was agreed upon by the parties as being essential. King vs. Ruckman, 20 N. J. Eq. 316, text 355. As the decision can be placed upon other grounds more satisfactory to the court, we will not definitely determine the question.

While time perhaps may not have been of the essence of the original contract, it was clearly made so by the notice-given by defendants and the agreement between the parties, at the time of granting the extension by the-defendants for the payment of the installment of the principal of the purchase money which became due May 1st, 1882. The case, so far as notice after he was-in default is concerned, is stronger against the complainant than is necessary under the principles of law-applicable to such notice as above stated.

Not only was the notice given him that the contract would be-rescinded if he failed to make the payments at the designated time provided for in the agreement for extension, bnt he actually agrees to such notice, and to a rescission of the contract if he failed to perform the same. He should have been held as acquiescing in the demand if he had remained absolutely silent, making no positive agreement in reference thereto. How much worse, then, is his situation when he positively agrees to comply with the notice.

Where complainant has thus failed to perform his agreement, and the other party has not acquiesced in such failure, but has insisted upon his rights under the agreement, a court of equity, while reluctant to enforce a forfeiture, will not decree specific performance. Longworth vs. Taylor, 1 McLean, 395. The complainant has also been guilty of such laches and negligence as should debar him of the remedy he seeks. He has not brought his suit within a reasonable time. There can be no general rule as to what constitutes a reasonable time for the bringing of such suits.

Much dej)ends upon the circumstances of each particular case. Chabot vs. Winter Park Co., supra.

Taking the main facts of the case into a hurried consideration, the reluctance of the defendants to sell to the complainant because of their opinion as to his inability to comply with his contract, and their desire to sell him cheaper land which he could more reasonably be expected to pay for; the agreement that payments should be promptly made; his repeated failures to pay installments as they became due, after notice making the time of their payment an essential part of the contract; the urgent persistency of the complainant in purchasing the higher priced land; the absurd nature of his supposed tenders of portions of the purchase money, and his long delay in making even this kind of tender; his failure to demand a deed; the delay in making any tender until suit for possession of the. property was threatened against him; his failure, so far as the present record shows, to set up his equitable defense to the action of ejectment, or to seek any injunction of the same, although the same was pending over a year and a half, until more than three months after the second judgment in the case has been entered in favor of the defendants, constitute, in our opinion, such laches and negligence as precluded a decree of specific performance in his favor.

The decree of the Circuit Court is affirmed.