(concurring). In concurring in the opinion of my associate for the affirmance of the decree in this suit, I have deemed the questions involved of such importance to the business interests of the community as *86to require a statement of the grounds upon which my opinion is founded. It is an elementary principle that a court of equity has no power to make or alter the contracts of parties; but ordinarily, its duties are, when invoked, to enforce them as made. Nor is the mere fact that the bargain is hard, or even unreasonable, sufficient of itself to induce the court to interfere; but there musí be connected with the contract some element or matter of equitable jurisdiction — such as fraud, mistake, duress, undue advantage, or the like, either inhering in the contract, or growing out of the age, relation, condition, or circumstances of one of the contracting parties — which probes the conscience of the chancellor, and invokes the protecting jurisdiction of equity. More than a century ago, Lord Chancellor Hardwicke said:
“ It is not sufficient to set aside an agreement in this court to suggest weakness and indiscretion in one of the parties who has engaged in it; for, supposing it to be in fact a very hard and unconscionable bargain, if a person will enter it with his eyes open, equity will not relieve him upon this footing only, unless he can show fraud in the party contracting with him, or some undue means made use of to draw him into such an agreement. (Willis v. Jernegan, 2 Atk. 251.)
There may possibly be contracts, not infected with fraud or imposition, which are so grossly unreasonable and oppressive that, in view of all the circumstances, a court of equity may be induced to interfere and grant relief; but as Judge Story says, the court in such case is “certainly very cautious of interfering,” and only “upon very strong circumstances,” and only then, it would seem, where some undue advantage is sought to be taken of some strict rule of law. (1 Story's Eq. Jur., sec. 381.) It may, therefore, be said that when a contract has been entered into which is legally binding upon *87the parties, and a breach or default in any of its terms occurs, equity will not interfere and relieve the party in default of the performance of his promise or-engagement, unless he can offer some good excuse; such as fraud or misconduct in the other party, or accident, mistake, and the like.
Turning, now, to the contract under consideration, can it be said that the stipulation complained of is not legal, or that it imposes any inequitable obligation? In effect, it simply provides that the interest shall be paid at stated periods of time, and in case of default in the payment of such as agreed, the creditor may insist upon the payment of his whole debt at his option. This is but an absolute promise of the debtor or obligor to pay the interest when due, coupled with the condition that, failing in this, he will be at once bound, at the option of the creditor, to pay the whole debt — all of which, in fact, he owes, and upon the faith of which promise and its performance the creditor parted with his money or property. Whether the credit shall be for the whole period or shorter, is made to depend upon the promptness with which the borrower pays the interest according to his agreement. Time is made the essence of the contract, and although the general rule is that equity will not regard time in the performance of contracts, yet if the parties have seen fit to make it the essence of their agreement, equity will not interfere to aid the party in default, unless he can offer some good excuse recognized in equity for such default. Nor is there any hardship in making the contract so. By such a stipulation, the party desiring to borrow is often enabled to secure a larger loan than he otherwise could upon the same propperty or other security, or to purchase property and contract for its payment upon more advantageous terms. To relieve him of his engagement when a benefit has thus *88been obtained upon the faith of his promise, and allow the interest to accumulate, might result, in many cases, in swelling the dimensions of the debt beyond the value of the security, or his ability to pay when the last day of grace had come. It might thus work, in some cases, a positive disadvantage and inequity to both parties — to one the sacrifice or loss of his property, and to the other the loss of part, at least, of his debt — a catastrophe which, perhaps, might have been averted by a strict performance of the contract, and which we may suppose the calculations of the parties were designed to prevent when the contract was made. To my min'd, there is nothing in such a contract which is inequitable, unreasonable, or oppressive. If the party suffers in consequence of his own default, it is the penalty of his own negligence, and of which he has no right to complain in a court of equity; for certainly it furnishes no ground for such court to intervene and relieve him from the payment of the interest according to the conditions of his own agreement, unless his default occurred in consequence of some act of the other party designed to mislead him, and to prevent the payment of the interest at the time appointed by the contract, or by reason of accident or mistake. In Noyes v. Clark, 7 Paige, 179, S. C., 32 Am. Dec. 629, the chancellor says:
“ The parties had the unquestioned right to make the extension of credit dependent upon the punctual payment of the interest at the time fixed for that purpose; and if, from the mere negligence of the mortgagor iñ performing his contract, he suffers the whole debt to become due and payable, according to the terms of the mortgage, no court will interfere to relieve him from the payment thereof according to the conditions of his own agreement.” (Steel v. Bradfield, 4 Taunt. 227; James v. Thomas, 5 Barn. & Adol. 40.)
*89The authorities to this point are numerous and unanimous. (Ferris v. Ferris, 28 Barb. 31; Valentine v. Van Wagner, 37 Id. 60; Rubens v. Prindle, 44 Id. 336; Bennett v. Stevenson, 53 N. Y. 508; Martin v. Melville, 11 N. J. Eq. 222; Wilson v. Bird, 28 Id. 352; De Groot v. McCotter, 19 Id. 532; Cassidy v. Caton, 47 Iowa, 22; Heath v. Hall, 60 Ill. 344; Terry v. Trustees Eureka College, 70 Id: 236; Leonard v. Tyler, 60 Cal. 299; Stanclift v. Norton, 11 Kan. 218; Crane v. Ward, Clarke Ch. 393.) In the last case named, this language is used:
“ The entire amount cannot be altered by any construction which may be given to the contract. The time of payment only is contingent. The parties to the original contract have, unquestionably, a right to agree that if- the interest upon the- money is not paid punctually, the principal shall become due; so they might make any other event the criterion of the time when the principal was to be paid.”
Nor does it make any difference whether the stipulation is contained in the note or mortgage; for “ it is well settled that where several instruments are executed together as parts of the same transaction, they are all to be considered in determining what the agreement was.” (Schoonmaker v. Taylor, 14 Wis. 342.)
Nor is such an agreement in the nature of a penalty or forfeiture, as contended, and against which equity, by reason thereof, will not enforce its terms. To this objection, Ingraham, J., in Ferris v. Ferris, 28 Barb. 31, has aptly replied: “It is urged that this a forfeiture, and that equity will always relieve a party against a forfeiture.”
But it is a mistake to say that there is any forfeiture.
“ The plaintiff’s claim is for the money secured by the bond, and interest. There is nothing more claimed. The debtor owes the amount; he forfeits nothing; he is *90required to pay nothing but his debt; there is no forfeiture to be relieved. If the bond had been conditioned to pay the money in one year, with an agreement to extend the payment a second year if the interest was paid within thirty days after it became due, no one would for. .a moment argue that there was any forfeiture; and yet that condition and the condition of the bond in suit are substantially the same. Nor can it be called a penalty; that is, a sum named as damages, to be recovered for violating an agreement or promise in lieu of damages. There is no such thing here. No damages are called for. Merely altering the day of payment is neither a forfeiture of any property nor a penalty in damages for the breach of any agreement.” (Ferris v. Ferris, 28 Barb. 31.)
It is plain, then, that such contracts are regarded as valid, and will be enforced in equity according to their terms when a default occurs. But there must be a default, which, as Lush, J., says, “imports something wrongful; the omission to do something which, as between the parties, ought to have been done by one of them.” And the omission to pay on the day specified will be such a default as will enforce a forfeiture of the time of the credit, unless it was occasioned by the acts or declarations of the holder of the mortgage, or the mortgagor can show some good excuse for it — such as mistake or accident or fraud. He who comes into equity must come with skirts clean and free from blame; for if the complainant who seeks to enforce the forfeiture of the time of credit is not free from fault, or guilty of conduct calculated to mislead the mortgagor and designed to prevent the payment of the interest on the day specified, the court will refuse to enforce the forfeiture of the time of credit. In Noyes v. Clark, supra, it was held that where a creditor keeps out of the way to prevent a tender of the amount due him, a suit commenced by such *91creditor for the recovery of the debt will be stayed, upon payment of the amount due, without cost, although a technical right of action existed-at . the commencement of the suit. The chancellor says:
“A court of equity, however, will not permit the mortgagee, or his assignee, to take an unconscientious advantage of the mortgagor wlio is willing to pay at the time prescribed, but who is unable to do so in consequence of the act of the other party; especially where there,is reason to believe the default in payment was the result of a mere trick to defraud the mortgagor of his rights, by depriving him of the power of making the payment at the time prescribed. In this case, it is evident that the defendant, Clark, was both ready and willing to pay the interest on his bond and mortgage on the day it became due, and if the assignee did not intentionally deprive him of the power of doing so, by keeping out of the way and concealing his place of residence, he transacted the business of the assignment in such an unusual manner as to produce the same result.”
In De Groot v. McCotter, supra, it was held that the court will not enforce a forfeiture of the credit if the complainant himself is in fault, or has misled the defendant. In this case, there was a parol agreement as to the place of payment, and the complainant promised to call at this place, but declined to give the number and street of his residence. Afterwards, upon suit brought by the complainant, the defendant claimed there was no default under the circumstances, as the complainant failed to call at the place appointed, etc. And in the course of opinion, Dalrimple, J., says:
“ I think it, therefore, fair to say that the complainant, by his own conduct, prevented a strict tender..... He is here asking the enforcement of a forfeiture according to the letter of the bond. We cannot grant this *92prayer, because' it does not appear that he is without fault. . It is not necessary to consider whether, as insisted by the defendant, the complainant acted in bad faith, or from a mere mistaken notion of his legal right. In either event, the result was the same — to mislead the defendant.” (See also Wilson v. Bird, supra.)
These references are sufficient to show the principle upon which courts of equity will interfere and relieve the defendant from the forfeiture of the time of the credit. Now, passing to the facts, what is the state of the case as disclosed by the evidence? At the time the note and mortgage were executed, both parties resided in this county, and the place of payment was at Salem. Subsequently the complainant removed to Portland, and resided there when the installment of interest fell due. The evidence shows that the complainant was extremely anxious to secure the payment of the whole debt, and endeavored to bring about some negotiation to effect that purpose.
Now, it is clear to my mind, failing in this as she did, that she was determined to take advantage of any circumstance, and to entrap the defendant in any way she could, so as to claim a default, and enforce the forfeiture of the credit. Several days prior to the date when the interest fell due, the defendant wrote to her, inquiring to whom he should pay the interest at Salem; or, if she would prefer it, that he would send her a check for the amount. In doing this, he was simply seeking honestly to keep the performance of his contract, and at the same time, if she preferred it, to save her the trouble and expense of coming to Salem. It was an easy matter for her to have answered his letter, either stating she would be there, and where, or designating some person or bank to receive it, or authorizing him to send his check, as might be her pleasure. Plonesty and fair dealing required that letter to be answered, but .she did not do it, *93but purposely and advisedly refrained from answering, to produce the result which followed. She neither came to Salem, nor designated any person or bank to receive it for her. More: she did not intend to do either. It would not do for the defendant to incur the risk of going to Portland, for that was not the place of payment; and to do that from his place of residence in the county, by the most rapid means of locomotion, he could not return "before late in the evening, when, practically, he would have been in default. The defendant did the only thing he safely could do — came to the place appointed by the contract for the payment of the interest. It is not questioned but what he had the money, or that his credit at the bank was not such that the payment could have been effected at any moment; nor that he was not at the proper place, ready and willing to meet his engagement. But the complainant was not there, either in person or by proxy, and designedly so. The object manifestly was to lead him to suppose that the complainant would be there, when the purpose was to remain away, and thus keep him in waiting until the hour for the late train should have passed, when practically he would be in default, or the hour would he too late to arrange for a •deposit of the money. There was in this conduct, and in that which preceded it, viewed in the light of all the circumstances, a manifest intention to mislead him. To my mind, there is no difference in such cases from the cases already referred to, where the party kept out of the way, or concealed the place of his residence, to deprive the mortgagor of the power of making the payment at •the time prescribed. He was not shirking his obligation, but honestly trying to perform it, and only prevented from doing it by artifice. In such case, there was not a default in the sense of a wrongful omission to do what had been contracted to he done, for the result pro*94duced originated in the misconduct of the complainant, and for the consequences of which the defendant ought-not to bo made to suffer. This was not.a contract which by its terms made the failure to pay the interest at tlio day specified work a forfeiture of the credit as to the whole debt absolutely, as in many of the cases, but only at the option of the complainant — a circumstance which' is to be considered in connection with the case in the light of all the evidence, and the conduct of the defendant immediately afterwards in sending checks for the interest.