When price fixed by valuation.

(m) See Haywood v. Cope, (1858) 25 Beav. 140; 27 L. J. Ch. 468, where a contract to purchase a colliery, which proved to be worthless, for 1400/., was forced on the purchaser: Jefferys v. Fairs, (1876) 4 Ch. D. 448; 46 L. J. Ch. 113 ; and see Ridgivayx. Sneyd, (1854) Kay, 627.

(n) See Webb v. Direct London and Portsmouth R. Co., (1851) 9 Ha. 140; rev. (1852) 1 D.3 M. & G. 521; 21 L. J. Ch. 337; E. C 11. Co. v. llaukcs, (1852) 1 D. M. & G. at p. 754 ; (1855) 5 H. L. C. 331 ; 22 L. J. Ch. 77 ; 24 ib. 601 ; and see judgment in Ridgway v. Sneyd, (1854) Kay, 635.

(o) Cockell v. Taylor, (1852) 15 Beav. 103; 21 L. J. Ch. 545.

(p) Waring v. Manchester R. Co., (1849) 7 Ha. at p. 492 ; 18 L. J. Ch. 450 ; Blackett v. Bates, (1865) 1 Ch. 117; 35 L. J. Ch. 324.

(q) As to ascertaining the price by arbitration, see sup. pp. 242, 243.

(r) Belchicr v. Reynolds, (1751) 2 Ken. pt. 2, 87, 91 ; Emery v. Wase, (1801) 5 Ves. 846 ; (1803) 8 Ves. 505, 517; Sug. 14th cd. 287.

(s) Collier v. Mason, (1858) 25 Beav. 200.

(t) Weekes v. Gallard, (1869) 18 W. R. 331.

Court's refusal to enforce a contract (u) which is not regarded with much favour (x).

As to the sixth of the above heads, comprising those grounds of defence which consist of matters relating to the conduct of the plaintiff subsequent to the contract: these may be conveniently treated of with reference to6th - Conduct of plaintiff after contract, when a defence.

1st. Cases, where the defence is, that the plaintiff (whether vendor or purchaser) has released, expressly waived, or improperly delayed to enforce, his rights under the contract.

Release, waiver of, or delay to enforce, the contract.

2ndly. Cases, where the defence is, that the plaintiff has, by his conduct, in respect of the estate, or towards the other party, forfeited his rights under the contract.

Forfeiture by conduct.

3rdly. Cases, where the defence is, that the plaintiff (whether the vendor or purchaser) has already chosen his remedy, and obtained satisfaction for the alleged breach of contract.

Election of other remedy for breach of contract.

As to the first class of cases. - An actual release by deed, or a mere written waiver of the contract, will, of course, be a good defence in Equity ; so will a mere parol waiver (y) ; "but such a defence must be established with the greatest clearness and precision ; and the circumstances of waiver and abandonment must amount to a total dissolution of the contract, placing the parties in the same situation in which they stood before the agreement was entered into " (z) : and Lord St. Leonards remarks, that "the Court will look at the evidence with great jealousy " (a) : and has held, judicially, that there must be as clear evidence of the waiver as of the existence of a contract (b) ; and the abandonment of the contract by one of several purchasers is no defence to a suit by his co-purchasers (c). Whether a parol waiver of a written contract was a sufficient defence at Law, was at one time considered doubtful; but now, as we have seen, mere equitable defences may be made available at Law (d).

Release, waiver of, or delay to enforce the contract.

(u) S. C; Eads v. Williams, (1854) 4 D. M. & G. 674.

(x) Emery v. Wase, (1801) 5 Ves. at p. 849 ; Parlcen v. Whitby, (1823) T. & R. 366 ; but qu. whether that decision would be now followed.

(y) See Pitcairn v. Ogbourne, (1751) 2 Ves. sen. 376 ; Morris v. Timmins,

(1838) 1 Beav. 411; Dawson v. Yates,. (1839) ib. 301.

(z) Per Lord Lyndhurst, in Robinson v. Page, (1826) 3 Rus. 114, 119; and see Price v. Dyer, (1810) 17 Ves. at p. 364.

(a) Sug. 14th ed. 168.

We have already considered (e) how far time is in Equity of the essence of the contract: even, however, where a clear right has existed to enforce the contract, such right may be lost by delay in resorting to the Court; e.g., an unexplained delay of seven years (f), in another of six years (g), and, in another case, of four years and eight months (h), and in another of three years (i), in filing the bill, has in itself been considered a sufficient answer to the suit; but in one case where possession was referable only to a contract for a lease, a delay of eighteen years was held to be no bar to a claim for specific performance (k). Where the bill was filed within fourteen months after a correspondence upon objections to the title had ceased, by the defendants returning no answer to the last letter which called for a distinct answer, and threatening to file a bill, specific performance was decreed : the Court observing, that one could easily imagine that circumstances might have happened which would have made it peevish to file the bill immediately (/).

What delay in bringing action, a defence.

(b) Carolan v. Brabazon, (1816) 3 J. & L. 200 ; as to the alteration of an agreement by either party, see sup. p. 261.

(c) Hood v. Pimm, (1837) 1 Coop, t. Cott. 279.

(d) As to effect at Law of a parol variation of a written contract, see sup. pp. 1008, 1015.

(c) Sup. p. 495 ct seq., and as to a mere option of purchase, see sup. p. 272 ct seq. And see generally, Fry, 4th ed. 463 et seq.

(f) Milliard v. Karl of Thanet, (1801) 5 Ves. 720, n. ; and see S. E.

B. Co. v. Knott, (1852) 10 Ha. 122; Levy v. Stogdon, 1899, 1 Ch. 5 ; 68 L. J. Ch. 19.

(g) Harrington v. Wheeler, (1799) 4 Ves. 686.

(h) Alley v. Beschamps, (1806) 13 Ves. 225.

(i) Firth v. Greenwood, (1855) 1 Jur. N. S. 866 ; and see Lamarc v. Dixon, (1873) L. R. 6 H. L. 114 ; 43 L. J. Ch. 203.

(k) Shepheard v. Walker, (1875) 20

Eq. 659 ; 44 L. J. Ch. 648.

(/) Marquis of Hertford v. Boore, (1801) 5 Ves. 719.

Less time, however, will in general be allowed when the defendant has expressly refused, than when he merely tacitly neglects, to perform the agreement (m) ; in cases of the former description, periods of delay, varying from two years and a half (n) to twelve months (o), have been held sufficient to bar the relief (p) ; it does not, however, appear, that time will run against the plaintiff so long as the question of completion remains under discussion (q) ; or while he is substantially in possession of the benefit contracted for (r): e.g., where, under a contract for a lease, possession was taken, and rent paid for several years (s). But in order that possession may have this effect, it must be possession under the contract, and the vendor must have known, or have been bound to know, that the purchaser claimed to be in possession under the contract (f).