BEOWN, J.
The general rules of law relating to the remedy by specific performance of a contract are familiar. However, each case that comes before us is surrounded by a different set of facts. This case must be governed by its own facts and circumstances, and unless the evidence discloses a situation where good conscience will naturally require the enforcement of the contract, relief by decreeing specific performance will not be awarded:
Winnie
v.
Winnie,
166 N. Y. 263 (59 N. E. 832, 82 Am. St. Rep. 647).
The plaintiff declares for specific performance of its contract with defendants. Defendants resist and plead forfeiture. Plaintiff alleges performance by payment of more than five sixths of the total purchase price of the timber, avers its offer to pay the balance thereof, and further avers and proves that it has at all times been ready, able, and willing to perform.its obligations under the contract. The defendants admit the receipt of the payments, but deny the sufficiency of the tender and assert their cancellation of the contract, yet. they ask the court for affirmative relief by decreeing that plaintiff has no right, title, or interest in the property described in the complaint.
A court' of equity may use its discretionary power and enforce the specific performance of a contract, based upon an adequate consideration moving from the party invoking such remedy. The contract forming the basis of this suit is founded upon a valuable consideration. As to the subject matter, parties, time of performance, purpose, and consideration, it is certain. It is neither unfair, unreasonable, nor inequitable in its provisions. That the vendee, the plaintiff herein, has performed its covenants is evidenced by the fact, among other things, that it paid to the vendor $20,315.83 as it became due, leaving an unpaid balance of $3,684.17 out of the total purchase price of $24,000, not then due. The unpaid balance has since been paid into court. The plaintiff averred, and adduced evidence to the effect, that it has complied with the terms of the agreement and has at all times been ready, willing and. able to perform all of its obligations in their entirety. But the defendants seek forfeiture. They seek to retain the more than $20,000 paid into their hands, and to
cancel all the purchaser’s rights to nearly one half of the timber sold by defendants and purchased by plaintiff. The defendants have received every dollar due except the sum that was paid into court for them. However, they assert that the plaintiff defaulted in the payment due July 5, 1921; that time was the essence of the contract; that they gave proper notice to plaintiff prior to their alleged cancellation of the contract; and that plaintiff must fail in this suit because of the inadequacy of its tender made on June 16, 1921.
The obligation of the vendors was to convey timber, free of encumbrance. The obligation of the vendee was to pay money, as agreed. These obligations were mutual and reciprocal. If the plaintiff is entitled to specific performance, the defendants cannot rightfully cancel the agreement. But, before we can decree specific performance, the plaintiff must show that it has not been at fault, but that it has taken all proper steps toward a performance on its own part and has been ready, desirous, and prompt to perform:
Rogers
v.
Saunders,
16 Me. 92 (33 Am. Dec. 635).
More than half a century ago this court, speaking through Mr. Chief Justice Bonham, in
Knott
v.
Stephens et al.,
5 Or. 235, 239, declared:
“Compensation, and not forfeiture, is a favorite maxim with courts of equity. ’ ’
See
Davis
v.
Wilson,
55 Or. 403 (106 Pac. 795);
Oregon Railroad & Navigation Co.
v.
McDonald,
58 Or. 228 (112 Pac. 413, 32 L. R. A. (N. S.) 117, note);
Scott
v.
Smith,
58 Or. 591 (115 Pac. 969);
Stennick
v.
J. K. Lumber Co.,
85 Or. 444 (161 Pac. 97, 166 Pac. 951);
Sheridan
v.
Pacific States Fire Ins. Co.,
107 Or. 285 (212.Pac. 783).
“A court of equity is reluctant to enforce a pro-, vision of a contract in the nature of a forfeiture, and though a party by the strict terms of his agreement may be entitled to a forfeiture it will be withheld if there has been a substantial performance or the defendant is ready to fulfill his obligation.” 26 Am. & Eng. Ency. of Law (2 ed.), p. 66.
However, where the vendor and vendee, in an agreement for the conveyance of real property, stipulate that time and strict performance shall be of the .essence of the contract, and that the rights of the vendee shall be forfeited for nonpayment, in such case the vendor may, after proper notice, declare and enforce such forfeiture for nonpayment:
Holbrook
v.
Investment Co.,
30 Or. 259 (47 Pac. 920);
Epplett
v.
Empire Inv. Co.,
99 Or. 533 (194 Pac. 461), and authorities there noted.
Broadly expressed, a tender, to be effectual, must be absolute and without condition. Bnt the rule as stated does not apply to the instant case. The tender may be good, though accompanied with a condition upon which the vendee has a right to insist. The acts to be performed by the vendors and the vendee in the case at bar are concurrent acts:
Anderson
v.
Wallowa National Bank,
100 Or. 679 (198 Pac. 560); 28 Am. & Eng. Ency. of Law (2 ed.), pp. 31, 32; 26 R. C. L., § 21, Tender.
The testimony shows that during the negotations for the contract the vendors represented that the timber involved therein was free from all encumbrances, although it was, in fact, mortgaged at that time. The vendors likewise agreed that the vendee might elect to pay the balance of the purchase price at any time, and that upon the payment of such balance they would execute a deed for the timber.
The plaintiff elected to pay, but requested that the timber be conveyed free from encumbrance.
“An offer in writing to pay a particular sum of money * * is, if not accepted, equivalent to the actual production and tender of the money.” Or. L., § 875.
Again:
“The person to whom a tender is made shall at the time specify any objection he may have * * , or he must be deemed to have waived it.” Or. L., § 877.
“There may be a waiver of the objection that the amount tendered is too small, or that it is too large, that the tender is not made at the time when performance is due, that it is not made at the proper place, that it is not made in the proper medium, that it is not unconditional, or that it is not made by the proper person.” 28 Am. & Eng. Ency. of Law (2 ed.), p. 38.
See, also, 36 Cyc. 704; 38 Cyc. 140.
We take the following valuable excerpt from
Anderson
v.
Wallowa National Bank,
100 Or. 679, 691 (198 Pac. 560, 564), wherein Mr.
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BEOWN, J.
The general rules of law relating to the remedy by specific performance of a contract are familiar. However, each case that comes before us is surrounded by a different set of facts. This case must be governed by its own facts and circumstances, and unless the evidence discloses a situation where good conscience will naturally require the enforcement of the contract, relief by decreeing specific performance will not be awarded:
Winnie
v.
Winnie,
166 N. Y. 263 (59 N. E. 832, 82 Am. St. Rep. 647).
The plaintiff declares for specific performance of its contract with defendants. Defendants resist and plead forfeiture. Plaintiff alleges performance by payment of more than five sixths of the total purchase price of the timber, avers its offer to pay the balance thereof, and further avers and proves that it has at all times been ready, able, and willing to perform.its obligations under the contract. The defendants admit the receipt of the payments, but deny the sufficiency of the tender and assert their cancellation of the contract, yet. they ask the court for affirmative relief by decreeing that plaintiff has no right, title, or interest in the property described in the complaint.
A court' of equity may use its discretionary power and enforce the specific performance of a contract, based upon an adequate consideration moving from the party invoking such remedy. The contract forming the basis of this suit is founded upon a valuable consideration. As to the subject matter, parties, time of performance, purpose, and consideration, it is certain. It is neither unfair, unreasonable, nor inequitable in its provisions. That the vendee, the plaintiff herein, has performed its covenants is evidenced by the fact, among other things, that it paid to the vendor $20,315.83 as it became due, leaving an unpaid balance of $3,684.17 out of the total purchase price of $24,000, not then due. The unpaid balance has since been paid into court. The plaintiff averred, and adduced evidence to the effect, that it has complied with the terms of the agreement and has at all times been ready, willing and. able to perform all of its obligations in their entirety. But the defendants seek forfeiture. They seek to retain the more than $20,000 paid into their hands, and to
cancel all the purchaser’s rights to nearly one half of the timber sold by defendants and purchased by plaintiff. The defendants have received every dollar due except the sum that was paid into court for them. However, they assert that the plaintiff defaulted in the payment due July 5, 1921; that time was the essence of the contract; that they gave proper notice to plaintiff prior to their alleged cancellation of the contract; and that plaintiff must fail in this suit because of the inadequacy of its tender made on June 16, 1921.
The obligation of the vendors was to convey timber, free of encumbrance. The obligation of the vendee was to pay money, as agreed. These obligations were mutual and reciprocal. If the plaintiff is entitled to specific performance, the defendants cannot rightfully cancel the agreement. But, before we can decree specific performance, the plaintiff must show that it has not been at fault, but that it has taken all proper steps toward a performance on its own part and has been ready, desirous, and prompt to perform:
Rogers
v.
Saunders,
16 Me. 92 (33 Am. Dec. 635).
More than half a century ago this court, speaking through Mr. Chief Justice Bonham, in
Knott
v.
Stephens et al.,
5 Or. 235, 239, declared:
“Compensation, and not forfeiture, is a favorite maxim with courts of equity. ’ ’
See
Davis
v.
Wilson,
55 Or. 403 (106 Pac. 795);
Oregon Railroad & Navigation Co.
v.
McDonald,
58 Or. 228 (112 Pac. 413, 32 L. R. A. (N. S.) 117, note);
Scott
v.
Smith,
58 Or. 591 (115 Pac. 969);
Stennick
v.
J. K. Lumber Co.,
85 Or. 444 (161 Pac. 97, 166 Pac. 951);
Sheridan
v.
Pacific States Fire Ins. Co.,
107 Or. 285 (212.Pac. 783).
“A court of equity is reluctant to enforce a pro-, vision of a contract in the nature of a forfeiture, and though a party by the strict terms of his agreement may be entitled to a forfeiture it will be withheld if there has been a substantial performance or the defendant is ready to fulfill his obligation.” 26 Am. & Eng. Ency. of Law (2 ed.), p. 66.
However, where the vendor and vendee, in an agreement for the conveyance of real property, stipulate that time and strict performance shall be of the .essence of the contract, and that the rights of the vendee shall be forfeited for nonpayment, in such case the vendor may, after proper notice, declare and enforce such forfeiture for nonpayment:
Holbrook
v.
Investment Co.,
30 Or. 259 (47 Pac. 920);
Epplett
v.
Empire Inv. Co.,
99 Or. 533 (194 Pac. 461), and authorities there noted.
Broadly expressed, a tender, to be effectual, must be absolute and without condition. Bnt the rule as stated does not apply to the instant case. The tender may be good, though accompanied with a condition upon which the vendee has a right to insist. The acts to be performed by the vendors and the vendee in the case at bar are concurrent acts:
Anderson
v.
Wallowa National Bank,
100 Or. 679 (198 Pac. 560); 28 Am. & Eng. Ency. of Law (2 ed.), pp. 31, 32; 26 R. C. L., § 21, Tender.
The testimony shows that during the negotations for the contract the vendors represented that the timber involved therein was free from all encumbrances, although it was, in fact, mortgaged at that time. The vendors likewise agreed that the vendee might elect to pay the balance of the purchase price at any time, and that upon the payment of such balance they would execute a deed for the timber.
The plaintiff elected to pay, but requested that the timber be conveyed free from encumbrance.
“An offer in writing to pay a particular sum of money * * is, if not accepted, equivalent to the actual production and tender of the money.” Or. L., § 875.
Again:
“The person to whom a tender is made shall at the time specify any objection he may have * * , or he must be deemed to have waived it.” Or. L., § 877.
“There may be a waiver of the objection that the amount tendered is too small, or that it is too large, that the tender is not made at the time when performance is due, that it is not made at the proper place, that it is not made in the proper medium, that it is not unconditional, or that it is not made by the proper person.” 28 Am. & Eng. Ency. of Law (2 ed.), p. 38.
See, also, 36 Cyc. 704; 38 Cyc. 140.
We take the following valuable excerpt from
Anderson
v.
Wallowa National Bank,
100 Or. 679, 691 (198 Pac. 560, 564), wherein Mr. Chief Justice Burnett, in rendering the opinion of the court, quote“d largely from a Connecticut case which is pertinent to the facts in the cause at issue:
“The distinction between the tender of the amount due upon a debt and offer of performance of an executory contract containing mutual covenants is pointed out in
Smith
v. Lewis, 26 Conn. 110. The controversy there was over a contract for the conveyance of realty and other property. The court said: ‘Some misapprehension or confusion appears to have arisen from the mode of expression used in the books in treating of the necessity of a tender or offer by the parties, as applicable to the case of mutual and concurrent promises. The word “tender,” as used in such a connection, does not mean the same kind of offer as when it is used with reference to the payment
or offer to pay an ordinary debt dne in money, where the money is offered to a creditor who is entitled to receive it and nothing further remains to be done, but the transaction is completed and ended; but it only means a readiness and willingness, accompanied with an ability on the part of one of the parties, to do the acts which the agreement requires him to perform, provided the other will concurrently do the things which he is required by it to do, and a notice by the former to the latter of such readiness. Such readiness, ability and notice are sufficient evidence of, and indeed constitute and imply, an offer or tender in the sense in which those terms are used in reference to the kind of agreements which we are now considering. It is not an absolute, unconditional offer to do or transfer anything at all events, but it is in its nature conditional only, and dependent on, and to be performed only in case of, the readiness of the other party to perform his part of the agreement.’ ”
‘ ‘ Generally the rules in equity concerning the necessity for an actual tender are not so stringent as those at law.” 26 E. 0. L., § 4, Tender.
“Where the agreement is executory and the acts of the parties are to be concurrent, * * an offer to pay and a demand of performance is sufficient, if performance be refused. In such case, it is sufficient to bring the money into court at the time of the trial.” 26 E. G. L., §28, Tender (In Equity).
The tender in the cause at issue may be faulty. But the defendants made no objection thereto, as to place, time, conditions, or otherwise. They remained quiet until time for payment arrived and then attempted a forfeiture. They desired to sell their timber. They found, in the corporation, a purchaser that was at all times ready, able, and desirous .of performing its obligation specified in the contract. They found a purchaser that has performed its agree
ment and has paid more than $20,000 on the total purchase price of $24,000.
The decree appealed from is affirmed.
Affirmed.
McBride, C. J., and Bean and Belt, JJ., concur.