This action was brought by. plaintiff for specific performance of a written contract, by the terms of which it was alleged the defendant sold to the plaintiff a ranch in Carbon county for the sum of $250. It was also alleged that the plaintiff performed all the conditions of the contract on his part to be performed, and that he tendered the agreed purchase price; but that the defendant refused to execute a deed of conveyance. It was further alleged' that in pursuance of the contract, and at the time of its execution, the plaintiff entered into and ever since has remained in possession of the land, and that he made valuable improvements thereon to the extent of $400. Defendant denied the contract alleged in the complaint, and affirmatively pleaded that he had offered to sell the land to the plaintiff, but because of plaintiff’s failure and refusal to make the payments in accordance with the terms of the offer the contract, upon notice, had been rescinded; that the rents and profits of the land during the plaintiff’s possession exceeded the taxes, the partial payment, and the value of the improvements made by plaintiff. The court found the issues substantially as alleged in the defendant’s answer, and, as conclusions of law, held the plaintiff guilty of laches and an abandonment of the contract, and denied the relief prayed for by plaintiff. On appeal, the plaintiff assails the findings and conclusions.
There is but little conflict in the evidence. Upon the ma^ terial questions involved there is none. On March 19, 1902, the plaintiff wrote the defendant: “I will give you $250 for your place; pay you $100 on or about the 20th of June, 1902, and the other $150 on or about the 1st of O'ctober, 1902. I will give you my notes if you want them, with my name and Joe’s on them. If you want to do this way write *55by return mail and let me know, for I want to put tbe place in, that is, if I get it.” In reply thereto the defendant two days thereafter wrote plaintiff: “I am willing to sell you the ranch at Farnum for $250 — $100 to be paid on or before June 20, and $150' to be paid on or before October 1, 1902; title to pass when payments are completed, if completed on the dates mentioned; you to assume the taxes to accrue this fall, and to assume any expenses in connection with water assessments of trial of water ease. Accordingly I enclose' herewith two notes, one of $100 payable on or before June 20, 1902, and one for $150 payable on or before October 1, 1902. Please mail these notes to me at Scofield when executed. Under this arrangement you are to go into possession of the land at once and of course remain in possession until you should fail to make the payments according to the agreement.” The notes were executed and delivered March 28, 1902, whereupon the plaintiff entered info possession of the land.
From the foregoing it is apparent that the agreement was not a mere option to purchase, but was an agreement to sell on the one part and an agreement to buy on the other. In this respect, the agreement is as alleged in the complaint— not as alleged in the answer — and the court should have so found, and as such it will be treated by us. On June I, Í902, the plaintiff paid the $100 note. He failed to pay the $150 note at its maturity, October 1, 1902. Thereafter the defendant made oral demands for payment, and espec: ially in the year 1903 when he told the plaintiff that he would have to “fix it up” or the defendant would rescind the contract. Each time the plaintiff promised to pay at some stated time, but failed to do so. On July 6, 1903, the defendant wrote plaintiff: “Your note a.t this time amounts to $115. I wish you would drop* me a line and inform me as to whether you desire to pay the note and secure the deed, or in case you don’t say anything are you aware of the fact that the payments so far made are forfeited? Will be glad to dispose of this matter without further delay, and wish you would write me at once.” Plaintiff admitted receiving this *56letter, but paid no attention to it — made no effort to pay tbe note — and in no manner concerned himself about it. Thereafter the defendant at divers times again verbally requested payment of the note, but the plaintiff disregarded the requests, except merely promising to pay at some future time. After payment had thus been delayed by plaintiff, wholly through his own neglect and not because of anything said or done or omitted by the defendant, for over two years, the defendant, on January 2, 1905, again wrote plaintiff: “There is due as a balance upon the ranch at Farnum the sum of $225. Please take notice that unless this money is in my hands by January 15th on said last mentioned date I will declare a forfeiture and rescission of the sale agreement with you, and will dispose of the property to another party who is desirous of purchasing the same. I have been desirous of affording you every reasonable opportunity to avoid a loss in connection with this agreement, but cannot permit the matter to stand any longer, as I am in need of the money.” To this letter the plaintiff replied on the 4th of January that he was hard up for money, that he had not sold anything from the ranch, that it was time for the defendant to. have his money, that he (plaintiff) wanted to borrow some money on a mortgage, and asked whether the defendant could refer him to a money lender, that he wanted as. much money as he could get to- buy cattle with, and further stated: “If you cannot do anything for me let know by return mail, so I will know what to do so I can get you the money. I may want ten days longer than you gave me, but if you can do anything for me soonei', do so. Let me know as soon as you can.” On the 8th day of January the defendant l-eplied that he could not help plaintiff on the mortgage suggestion, and stated: “I can extend the forfeitui’e period until January 25, 1905, but no longer, as will need to make a turn before February 1st.”
The evidence is somewhat conflicting as to whether the plaintiff received this letter, but- the court was amply jxistified •from the evidence in finding that he did. But the plaintiff himself admitted that notwithstanding the letter of January *572d, and bis reply thereto on the 4th, he made no effort to pay the note, and gave the matter no concern whatever, but wholly failed and neglected to> pay, as he had done theretofore. The note still remaining unpaid, no effort to pay having been made, and no willingness or desire expressed to pay it, the defendant, on March 18, 1905, wrote plaintiff: “I regret to be compelled to notify you that in pursuance of previous notices requiring in the alternative the payment of the money at certain definite dates now long past or the rescission of the sale agreement between us, and I have sold the F'arnum property to Mr. W. D. Stephens.” The plaintiff admits receiving this letter and making no reply thereto, and that he made no request for any further extension of time. He remained silent in the matter until the 25th day of April, 1905, when he deposited the sum of $242.25 with the county clerk of Carbon county, who, on the same day, at plaintiff’s request, wrote the defendant that said sum had been deposited which was to be paid to him upon the execution of a deed of conveyance. The defendant made no reply to this letter, but, on May 1st, wrote plaintiff: “Pursuant to my notices given to you some- time ago rescinding negotiations looking to the purchase by you of the Famum ranch, I beg to return herewith your note of $150, no part of which has been paid, and the payment of which was, by my notice of rescission of said contract, waived.” The note was inclosed and then returned to plaintiff. To this letter also the plaintiff made no reply. The note was received by him and not returned. On May 17th following, the plaintiff began this suit by the filing of a complaint and the service of a summons. During all this time the plaintiff remained in possession of the land.
The ranch consisted of about forty-five acres through which coursed a steam of water. Most of the land was wild and unbroken. Some of it had been cultivated before plaintiff’s possession. Along the river bottom were cottonwood trees, stumps, and willows. The evidence on behalf of plaintiff shows that he broke, cultivated, and seeded only about thirteen or fourteen acres of the land, of which there were about *58five acres of bottom lands from which he removed about one hundred trees and stumps with which he did some riprapping along, the stream, all at an expense and to the value, as alleged in his complaint and as testified to by plaintiff himself, of $400. The plaintiff made no other improvements on the land, except the building of a boundary line fence at an expense of $35. Plaintiff also testified that he paid out about $20 court costs in litigation of certain water rights; that he paid the taxes during the time of his possession; and that the riprapping done by him amounted to only $25.
On behalf of the defendant there was evidence which tended to show that the plaintiff dug and removed from the land' only about ten trees and ten stumps. While plaintiff testified that all he did on the land in the way of breaking, cultivating, and clearing it, and doing the riprapping improved the land to the extent of $400, yet the details of the work and the time employed, as testified to by him, were somewhat indefinite and uncertain, for he several times testified that he had no definite or independent recollection of the tim,e employed or the work done, but that such matters were only estimated by him. Much of the evidence relating thereto is of such a character -as to warrant the trial court in finding that the plaintiff exaggerated the value. Let that be as it may, those were matters more properly for the trial court. It having found the facts against the plaintiff, we are not, on review, at liberty to consider only the testimony most favorable for the plaintiff, but the findings of the court must be viewed in light of all the evidence, and of all the reasonable deductions and inferences which the trial court was warranted in drawing therefrom. Upon the land so improved, according to his own testimony, the plaintiff raised grain to the value of $115 in 1902; in 1903 to the value of about $155; in 1904, grain and potatoes to the value of about $590: and in 1905, hay and potatoes to the value of about $225. The costs and expenses of raising these crops and the amount of taxes paid by the plaintiff are not shown. From all the evidence we think the court was justified in finding that the rental' value of the premises during the time occupied by *59plaintiff exceeded in value the $100 partial payment and the costs of improvements made by him. The evidence further shows that until the plaintiff deposited the money with the clerk no demand or request had been made by him for a deed'; neither did the defendant make an actual tender of a deed, nor did the plaintiff indicate any -willingness or ability to pay. On the other hand, the defendant expressed a desire and willingness to convey, and although he did not make an actual tender of a deed, the fact that he was able, ready, and willing to convey prior and up to January 25, 1905, upon plaintiff’s payment, is not disputed'. No claim whatever is made by plaintiff that the defendant was not at all times prior to January 25, 1905, able, ready, and willing to perform his part of the contract upon plaintiff’s payment of the money. Nor does the plaintiff in any particular claim that his delay in making payment was due to defendant’s failure to tender a deed, or that it was in any manner caused or induced thereby. The claim made by him is that, because the defendant did not make an actual tender of a deed, the defendant was not in a position to declare the contract ended, and thus to terminate plaintiff’s right to a specific performance of the contract at any time within the period of the statute of limitations, on plaintiff’s tender off the money.
It is said that the plaintiff testified that if the defendant had tendered a deed, he would have paid the money. That came aboirt in this way: When plaintiff was testifying, he was asked by his counsel whether he would have paid the money had the deed been tendered. This was objected to as incompetent, irrelevant, and self-serving. • The court stated that if the case were before a jury he would sustain the objection, but as it was only before the court he would overrule the objection pro forma, and consider the -admissibility of the evidence later. Thereupon the plaintiff answered in the affirmative. But, on being further examined on the question, he stated that his failure to pay the money was not because a deed had not been tendered, and that, until he had deposited the money with the county clerk, he had *60made no request for a deed. When asked why he had not paid the money, he said that he did not know that the defendant wanted it; and when shown the letter of July 6, 1903, which plaintiff admitted was received by him, and asked if by its language he did not understand that the defendant was urging and demanding payment, and that the deed was ready for him upon payment being made, he said he did not so understand it. But with the correspondence of the parties subsequent to the maturity of the note before us, and with plaintiff’s admission that the defendant had also orally demanded payment of the note, it is most difficult to conceive of plaintiff’s not knowing that the defendant wanted his money and was urging that it be paid. That the plaintiff delayed payment for an unreasonable time, due solely to his own default and neglect, and wholly uninfluenced by anything said or done or omitted by the defendant, cannot well be gainsaid. This, is, therefore, not a case of mere delay in making payment by a vendee where the vendor ' remained silent and inactive or otherwise acquiesced in the vendee’s delay or failure to pay. The evidence most conclusively shows the contrary.
This brings us to a consideration of the principal claim made by the plaintiff that, notwithstanding his delay and neglect, he is entitled to have the contract specifically enforced, because the defendant made no tender, of a deed, and therefore did not put the plaintiff in legal default. It is urged by plaintiff: That time was not of the essence of the contract; that the stipulations of the contract were mutual, concurrent, and dependent; that in such case, where the deed is to be delivered upon the payment of the price, either on a day named or without any day having been specified, an actual tender and demand'by one party is absolutely necessary to put the other in default, and to cut off his right to treat the agreement as still subsisting; that so long as neither party makes such tender — of the deed by the vendor and of the price by the vendee — neither party is in default; that the defendant could not treat the agreement as rescinded until he had made a tender of the deed, and returned the part of the purchase *61price paid and surrendered tbe note' held by bim; tbat until be bad done so tbe plaintiff could not legally be in default, but was entitled to have tbe contract regarded as still subsisting, and to have it specifically enforced at any time within tbe period of the statute of limitations — if prior to tbe suit be had. made a tender of tbe full purchase price; and that be was especially entitled to such relief because of bis posses? sion of tbe premises and of the improvements made by him. In cases involving tbe foregoing propositions, tbe principles of law invoked by plaintiff have application, and a specific performance of tbe contract should be granted unless tbe status of tbe defendant by reason of tbe delay not acquiesced in by bim has been changed so tbat performance would be inequitable, or tbe delay was willful. The defendant has not pleaded tbat bis status has been changed, nor has be offered any evidence showing such fact. True, be offered to show that be bad sold tbe premises to another, but, upon objection made to such offer, be voluntarily withdrew it. But tbe case assumed by plaintiff, in his contention, is very unlike tbe case presented by tbe record, in two very important particulars. One is tbat though time was not originally of tbe essence of tbe contract it was afterwards made so by tbe parties; tbe other is tbe unexplained and intentional delay of plaintiff.
It may be conceded tbat tbe stipulations and provisions contained in tbe contract were mutual, concurrent, and dependent, as is contended by appellant. It may also be conceded tbat time was not of tbe essence of tbe contract as originally made. But, as Mr. Pornery says in bis work on Specific Performance of Contracts, at section 395 (2d Ed.):
“As the doctrine that time is not essential in the performance of the contract may sometimes work injustice, and be used as the excuse for unwarrantable laches, the following rule was introduced at a comparatively late period, and is now firmly settled, which prevents the doctrine from being abused by the neglect or willfulness of either party. If either the vendor or the vendee has improperly and unreasonably delayed in complying with the terms of the agreement on his side, the other party may, by notice, fix upon and assign a reasonable time for completing the contract, and may call upon the defaulting *62party to do the acts to be done by him, or any particular act within this period. The time thus allotted then becomes essential, and if the party in default fails to perform before it has elapsed, the court will not aid him in enforcing the contract, but will leave him to his legal remedy.”
At section 396 be says that the notice cannot be an arbitrary and a sudden termination of tbe contract; it must allow a reasonable length of time for the other party to perform, and if it fails in any of these respects it may be disregarded and will produce no effect upon the equitable remedial rights of the party to whom it is given; and that to be effectual in making the time allotted an essential element of the performance the notice must be express, clear, distinct, and unequivocal. The rule is also well stated in Pomeroy’s Equity Jurisprudence, vol. 6, sec. 815, vhere it is said.
“Where time is not of the essence, the time in which the party in default may have a further right to receive performance may be limited by the party not in default giving reasonable notice that performance must be made by a certain day. If a reasonable time after receipt of the notice is thus given the party in default, equity will not enforce specific performance in his behalf after the day named.”
This principle of law has become so well settled that it is unnecessary to multiply cases on it. We think such a notice was given by the defendant in his letter of January 2, 1905, wherein he stated the amount due, and wherein the plaintiff was notified that “unless this money is in my hands by January 15th, on the said last-named date I will declare a forfeiture and rescission of the sale agreement with you, and will dispose of the property to another party who is desirous of purchasing the same.” No claim is made that the time fixed in this notice was, under the circumstances, unreasonable, or that it took the plaintiff by surprise. The only claim made by the plaintiff in his reply to this notice was that he was hard up for money, and that he might want 10 days longer than tire defendant gave him. The defendant thereupon wrote him that he would extend the time until January 25th, but no longer. We here then have time made of the essence, which was expressly and unequivocally fixed on the 25th day of January, 1905, by the mutual agreement *63of tbe parties. Tbe performance of tbe contract witbin such time was not waived by tbe defendant, nor was there anything done by him which could be construed as a waiver. It is not claimed that tbe plaintiff failed to perform witbin such time in consequence of anything said or done by tbe defendant, nor that tbe defendant after tbe time bad elapsed remained silent or inactive, or in any manner treated the contract as still subsisting.
Notwithstanding the subsequent agreement between tbe parties fixing tbe time of payment definitely on tbe 25th day of January, tbe plaintiff, according to bis own testimony paid no attention to the time so fixed, and made no effort to pay tbe money witbin such time. He remained silent and inactive during all the months of January, February, March, and up to April 25th, when be deposited tbe money with tbe county clerk. This was not done until be bad received tbe defendant’s letter of March 19th notifying him of tbe sale of the land to Stephens. No attempt was even made to explain the delay, nor was there any excuse offered to- ae-count for tbe failure of performance within tbe time fixed. Nor is it made to appear that- tbe plaintiff regarded tbe contract as still subsisting except as may be inferred from bis continued possession of tbe premises. When, however, time is made of tbe essence, tbe question of reasonable delay or laches is ordinarily not involved, for, as is said,
“If time is of the essence, no question of delay or laches, using these words with regard to their true meaning, can properly arise. If time is essential, the stipulation of the contract must be exactly complied with; not the delay, but the failure to perform at the exact day, cuts off the right of the defaulting party.” (Pomeroy on Spec; Perf. section 399.)
At sections 361 and 362, tbe author above quoted well points out tbe distinction between granting specific performance of contracts when time is, and when not, made essential. He says:
“Where the stipulations are mutual and dependent — that is, where the deed is to be delivered upon the payment of the price, either on a day named or without any day being specified, an actual tender and *64demand by one party is absolutely necessary to put the other in default and to out off his' right to treat the 'agreement as still subsisting. So long as neither party makes such tender — of the deed by the vendor and of the price or securities by the vendee — neither party is in default; the contract remains in force, and either party may make a proper tender or offer and sue, until barred by the statute of limitations. This rule, however, does not apply to those contracts in which the time of performance has been made essential, and the agreement itself is to be regarded as void or rescinded if the vendee fails to make his payment on the stipulated days. In all those contracts where the time of payment by the vendee is essential and not simply material, and a fortiori in those where, if the vendee’s payments are not made upon the exact day named, the vendor may treat the agreement as at an end, the vendee must make an actual tender of the price and a demand of the deed at the specified time, as a condition precedent to his maintaining his sirit. The same is true of the vendor when the time of his conveyance is made essential. This rule is involved in the very notion of time being of the essence of the contract.”
When, therefore, tbe stipulations of the contract are mutual, concurrent, and dependent, and time is only material but not essential, so long as both parties bare taken no steps to assert their respective rights or demands for a completion, and so long as the vendor has made no tender or offer of deed or demand on the vendee, and the vendee has made no tender of the price or demand on the vendor, the contract continues to subsist until barred by limitation. So, too, when time is of the essence', yet if neither party has exercised his right to declare an end to-the contract, or where the one party has remained silent and inactive, or has otherwise done something amounting to a waiver, or has treated the contract as still subsisting, he cannot, when the stipulations of the contract are mutual,' dependent, and concurrent, legally place the other party in default until he himself has tendered performance or offered to perform. In such cases, in order that he may terminate the contract, the vendor must tender or offer of a deed, and account for the purchase money paid. Appellant has cited a large number of authorities where the principles of law invoked by him were applied, but they are not applicable here. In ordinary cases of contract, equity does not regard time as of the essence of the contract. Although in ordi*65nary cases of contract for the sale of land a certain period of time is stipulated for its completion, or for tbe execution of its terms, still equity treats the provision as formal rather than essential, and permits a party who has suffered the period to elapse to perform such acts after the prescribed date, and to compel a performance- by the other party, notwithstanding his own delay, when not willful and intentional, • and when it worts no harm to the other party. But, as is said in Pomeroy’s Equity Jurisprudence, vol. 4, sec. 1408:
“Time may be essential. It is so -whenever the intention of the parties is clear that the performance of its terms shall be accomplished exactly at the stipulated day. The intention must then govern. A delay cannot be excused. A performance at the time is essential; any default will defeat the right to a specific performance.”
In support of this the author cites numerous cases from many different states. See, also, vol. 6, sec. 1811, of the same work, and cases there cited.
Where, therefore, time is of the essence, equity, as well as law, demands a substantial complaince with terms of the contract by him who seeks the equitable relief of specific performance- or a rescission of the contract. In such case performance, or offer to perform, within the specified time, is a condition precedent to his maintaining a suit, unless, of course, the other party, through silence or otherwise1, has waived performance within such time or thereafter has. otherwise treated the contract as subsisting. With this condition the evidence shows most conclusively the plaintiff has not complied. The contract, when declared on by him, was at an end. In addition to the authorities already cited, the following cases fully support our conclusion. Fuller v. Hovey, 2 Allen (Mass.) 324, 79 Am. Dec. 782; Chabot v. Winter Park Co., 34 Fla. 258, 15 South. 756, 43 Am. St. Rep. 192; Fry, Specific Performance, p. 419; Austin v. Wacks, 30 Minn. 335, 15 N. W. 411; 2 Warvelle on Vendors (2d Ed.), secs. 476, 747, 756; Johnson v. Evans, 8 Gill (Md.) 155, 50 Am. Dec. 678; Kirby v. Harrison, 2 Ohio St. 326, 59 Am. Dec. 680; Upton v. Maurice (Tex. *66Civ. App.), 34 S. W. 642. Though time were not here to be regarded as essential, still, to what extent was plaintiffs right to specific performance affected by his laches and his supposed equities? It is a familiar and general doctrine, recognized by all the authorities, that the application for specific performance is addressed to1 the sound discretion of the chancellor, guided and governed by the general principles of equity; that it is not granted as a matter of right in either party, but it is granted or withheld according to the circumstances of each case, when the rules or principles, of equity will not furnish any exact measure of justice between the parties; that the party seeking the relief must show that he has performed, or was eager, prompt, and ready to perform, the contract on his part, and has not been guilty of laches or unnecessary delay, or that such delay is excused or has been acquiesced in by the other party; and that much must be left to the judgment and sound discretion of the judge who hears the case. And where his determination of the merits of the application is reasonably supported by the evidence and is consistent with the established principles which govern the equitable remedy, it will not ordinarily be disturbed by the appellate court. And, as is stated in Pomeroy’s Equity Jurisprudence, vol. 4, sec. 1408.
“Although, time is not ordinarily essential, yet it is, as a general rule, material. In order that a default may not defeat a party’s remedy, the delay •which occasioned it must be explained and accounted for. The doctrine is fundamental that a party seeking the remedy of specific performance, and also the party who desires to maintain an objection founded upon the other’s laches, must show himself to have been ‘ready, desirous, prompt, and eager.’ ”
From this record the conviction is forced that plaintiff fell short o'f showing himself “ready, proriipt, and eager.” That his delay of over two and one-half years, wholly unexplained and unexcused, was, under all the facts of the case, unreasonable and intentional, cannot well be disputed. It is not claimed nor could the claim be successfully made, that the defendant acquiesced in the delay, for he at all times demanded his money and insisted that it be paid. Appellanr *67also insists that he was entitled to specific performance because of equities claimed to have arisen on account of his possession and improvement and of his partial payment of purchase price. Under what circumstances specific performance will be granted because of possession and improvements made when permanent and beneficial to the freehold, and whether the character of plaintiff’s improvements are such as are regarded permanent and beneficial within the meaning of the rule, need not be considered by us. Plaintiff’s action was not grounded on such theory. It was based on an alleged subsisting written contract for the sale of realty, and was founded on the theory that the plaintiff had fully performed on his part, but that the defendant wrongfully and in violation of the contract .refused to perform on his part. But what equities has plaintiff shown in this regard ? The record shows that the $150 note was surrendered to him before the commencement of the action. The defendant in his answer alleged that the plaintiff had the use and benefit of the land for three years, and that the rental value thereof exceeded the taxes and partial payment of purchase price, and offered, if it were determined that any balance should he due plaintiff by reason of the premises, to> pay the same. The court found, and we think there is evidence to justify the finding, that the rental value of the land exceeded the partial payment and the value of the improvements made by plaintiff. And, as shown by plaintiff’s own testimony, the value of his improvements, including the fence', and the part payment made, and court costs expended by bim amounted to $555; and the value of the grain and products raised by him on the land'was $1,085. This of course was not net profits. Where, however, specific performance is invoked on equities arising from possession and improvements, the burden is on plaintiff to show his equity and the loss that will be suffered by him if specific performance is withheld. While there are authorities which hold that a ven-dee under some circumstances cannot have a specific performance of the agreement because of his possession and improvements made by bim when he has gained more by the *68possession and use of tbe land than be has lost by giving Rip the improvements, or when he has been compensated for his outlays in making the improvements, yet we do not wish to be understood that specific performance is here denied on such ground. That, is to say, were the plaintiff otherwise entitled' to> a specific performance of the contract declared on, the fact that he has gained more from the possession than he has lost by his outlays and improvements, would not defeat his right to a specific performance. A comparison of his outlays and benefits is made only as bearing on the loss suffered by him if a specific performance is withheld, and as bearing on the vendor’s duty to refund the $100 paid on purchase price.
On a consideration of the whole case we think the evidence required a judgment for the defendant. The judgment of the lower court is therefore affirmed, with costs.