By the Court, Strong, P. J.
The paper first subscribed by the plaintiffs and the defendant McGown Was intended as a minute or memorandum of a contract to be drawn and executed at a future period. It was however subsequently treated by the parties to it as a contract, and must now be considered as such. It contained an imperfect description of the land, had no date, and did not specify the time when the agreement was to be performed. It is Competent, however, for the parties to a contract to go into parol evidence more clearly to define its subject matter, provided such evidence is merely explanatory, and not contradictory. The defect in-description, in this case, was cured and additional evidence rendered unnecessary, by the admission in the answer of McGown that the lands intended to be conveyed were identical with those specified in the conveyance to the defendant Sandford. As no time was specified in the memorandum, for the conveyance of the property, the legal inference would be that it should be made in a reasonable time. The day settled by the parties was the 1st of the following month of May. It was competent for them to fix the time by parol, as the statute, (2 R. S. 69, § 8,) does not require that such particular should be in writing. The time was next extended by the parties to the 1st of November following, and subsequently to the 15th of that month. There was a mutuality which was a sufficient consideration for the agreement of each party for such extensions. It appears from the testimony of Mr. Adr-iance, Who was examined for the plaintiffs and was the only witness in the cause, that they were not ready to perform the agreement on their part, either on the 1st of May or [278]*278on the 1st or 15th of November, and that the extension of time was in each instance at their request. It is true that McGown was not prepared to fulfil the contract at either of those periods, as he had not the title to the land. But it is apparent that had the complainants been ready on their part he could have obtained the title at any time. The delay was caused by the complainants, and the failure to fulfil the agreement on the 15th of November was attributable to them. The question, so far as it relates to the first contract, is whether McGown was under any obligation to convey the land after that day. Courts of equity have sometimes interposed in favor of parties who were not ready at the day, when in p their opinion the time specified in a contract for its fulfilment was not essential. But when a further indulgence is granted it should only be in extreme cases, where a party has failed through some unforeseen accident, or where there is something indicating a waiver of the objection by the other party. The parties have a right to fix their own terms, and I know of no power in the court to determine which of them are, and which of them are not material. If they had such power it would be very hard to draw the line of distinction. That would have to depend upon the particular opinions of the judge who should decide the cause. It is far better to let the parties settle the terms of their own agreement, than that this court should make one for them. It is apparent, however, that the parties to this contract did eventually deem the time material. If they had not, they would not have thought it necessary to extend it by a new agreement for so short a period as from the 1st to the 15th of November. What would have been the use of the extension, if the rights of the parties would have been the same without it ? Besides, no excuse is offered by the plaintiffs for their failure on the last mentioned day.
It has been contended that the transaction between the plaintiffs and McGown, on the 9th of December, was a waiver of the objection on his part arising from the non-performance of the contract by the plaintiffs on the 15th of November. I do not view it in that light. Mr. Adriance testifies that one reason [279]*279for making the second agreement was that the first had then expired. It is true that many of the terms of the two contracts were substantially the same. But it was certainly competent for the parties to incorporate in the second contract as many of the terms of the first as they chose. There were several new provisions advantageous to McGown. The deed to be given by him was to be without covenants, and he was to retain four lots. This last contract was, however, delivered to Mr. Adriance as an escrow, and the condition on which it was to be delivered to the parties absolutely is strong to show that they then considered the first contract at an end. It was to be delivered to the plaintiff, if Reed, to whom they had previously sold a part of the land, should pay a part of the consideration money to McGown on the same day; otherwise it.was to be null and void. Why should this condition be imposed if the first contract had been still operative ? The second was more advantageous to McGown, and he would prefer enforcing that, at all events, to the continuance of the other. Neither could the parties have designed that the complainants should be the gainers by their own default, or the default of one for whose conduct they were responsible. The supposition that the first contract was then considered by the parties as still valid, and that the second was intended as a mere addition to it, is at variance with the whole transaction.
But the agreement made on the 9th of December was never consummated. The money was not paid on that day. True, McGown consented to waive the objection arising from such non-payment, if the money should be paid on the following day. But it was not then paid, and there is no principle which would justify this court in extending the waiver beyond the time fixed by the party himself. I repeat, that we cannot make a new agreement between the parties. Nor, if we could, should I feel disposed to do it, after such repeated delays, and for which no satisfactory excuse is offered.
By holding that the plaintiffs have forfeited their right to claim a conveyance of the lands in question by reason of the delay, I adopt no more stringent rule than was laid down by [280]*280Lord Loughborough in Lloyd v. Collett, (4 Bro. 469,) by Lord Alvanley in Milwaird v. Earl Thanet, (5 Ves. Rep. 720, n. l.) by Lord Erskine in 13 Ves. Rep. 224, and by Chancellor Kent in Benedict v. Lynch, (1 John. Ch. 370.) In the last case the chancellor, after reviewing the leading cases on this subject, says: “ From the review which I have taken of the cases, the general principle appears to be established that time is a circumstance of decisive importance in these contracts; but it may be waived by the conduct of the party: that it is incumbent to [upon] the plaintiff calling for a specific performance to show that he has used due diligence, or, if not, that his negligence arose from some just cause, or has been acquiesced in; that it is not necessary for the party resisting the performance to show any particular injury or inconvenience. It is sufficient if he has not acquiesced in the negligence of the plaintiff, but considered it as releasing him.”
The deed from Mrs. McGown is imperfectly described, nor is it stated whether the delivery of it to Mr. Adriance was absolute or conditional. If it conveyed the title of the land to the defendant McGown, as the plaintiffs contend, that could in no manner benefit them in this controversy. It assuredly vested no equitable estate in them ; as there was no valid and subsisting contract between them and McGown.
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By the Court, Strong, P. J.
The paper first subscribed by the plaintiffs and the defendant McGown Was intended as a minute or memorandum of a contract to be drawn and executed at a future period. It was however subsequently treated by the parties to it as a contract, and must now be considered as such. It contained an imperfect description of the land, had no date, and did not specify the time when the agreement was to be performed. It is Competent, however, for the parties to a contract to go into parol evidence more clearly to define its subject matter, provided such evidence is merely explanatory, and not contradictory. The defect in-description, in this case, was cured and additional evidence rendered unnecessary, by the admission in the answer of McGown that the lands intended to be conveyed were identical with those specified in the conveyance to the defendant Sandford. As no time was specified in the memorandum, for the conveyance of the property, the legal inference would be that it should be made in a reasonable time. The day settled by the parties was the 1st of the following month of May. It was competent for them to fix the time by parol, as the statute, (2 R. S. 69, § 8,) does not require that such particular should be in writing. The time was next extended by the parties to the 1st of November following, and subsequently to the 15th of that month. There was a mutuality which was a sufficient consideration for the agreement of each party for such extensions. It appears from the testimony of Mr. Adr-iance, Who was examined for the plaintiffs and was the only witness in the cause, that they were not ready to perform the agreement on their part, either on the 1st of May or [278]*278on the 1st or 15th of November, and that the extension of time was in each instance at their request. It is true that McGown was not prepared to fulfil the contract at either of those periods, as he had not the title to the land. But it is apparent that had the complainants been ready on their part he could have obtained the title at any time. The delay was caused by the complainants, and the failure to fulfil the agreement on the 15th of November was attributable to them. The question, so far as it relates to the first contract, is whether McGown was under any obligation to convey the land after that day. Courts of equity have sometimes interposed in favor of parties who were not ready at the day, when in p their opinion the time specified in a contract for its fulfilment was not essential. But when a further indulgence is granted it should only be in extreme cases, where a party has failed through some unforeseen accident, or where there is something indicating a waiver of the objection by the other party. The parties have a right to fix their own terms, and I know of no power in the court to determine which of them are, and which of them are not material. If they had such power it would be very hard to draw the line of distinction. That would have to depend upon the particular opinions of the judge who should decide the cause. It is far better to let the parties settle the terms of their own agreement, than that this court should make one for them. It is apparent, however, that the parties to this contract did eventually deem the time material. If they had not, they would not have thought it necessary to extend it by a new agreement for so short a period as from the 1st to the 15th of November. What would have been the use of the extension, if the rights of the parties would have been the same without it ? Besides, no excuse is offered by the plaintiffs for their failure on the last mentioned day.
It has been contended that the transaction between the plaintiffs and McGown, on the 9th of December, was a waiver of the objection on his part arising from the non-performance of the contract by the plaintiffs on the 15th of November. I do not view it in that light. Mr. Adriance testifies that one reason [279]*279for making the second agreement was that the first had then expired. It is true that many of the terms of the two contracts were substantially the same. But it was certainly competent for the parties to incorporate in the second contract as many of the terms of the first as they chose. There were several new provisions advantageous to McGown. The deed to be given by him was to be without covenants, and he was to retain four lots. This last contract was, however, delivered to Mr. Adriance as an escrow, and the condition on which it was to be delivered to the parties absolutely is strong to show that they then considered the first contract at an end. It was to be delivered to the plaintiff, if Reed, to whom they had previously sold a part of the land, should pay a part of the consideration money to McGown on the same day; otherwise it.was to be null and void. Why should this condition be imposed if the first contract had been still operative ? The second was more advantageous to McGown, and he would prefer enforcing that, at all events, to the continuance of the other. Neither could the parties have designed that the complainants should be the gainers by their own default, or the default of one for whose conduct they were responsible. The supposition that the first contract was then considered by the parties as still valid, and that the second was intended as a mere addition to it, is at variance with the whole transaction.
But the agreement made on the 9th of December was never consummated. The money was not paid on that day. True, McGown consented to waive the objection arising from such non-payment, if the money should be paid on the following day. But it was not then paid, and there is no principle which would justify this court in extending the waiver beyond the time fixed by the party himself. I repeat, that we cannot make a new agreement between the parties. Nor, if we could, should I feel disposed to do it, after such repeated delays, and for which no satisfactory excuse is offered.
By holding that the plaintiffs have forfeited their right to claim a conveyance of the lands in question by reason of the delay, I adopt no more stringent rule than was laid down by [280]*280Lord Loughborough in Lloyd v. Collett, (4 Bro. 469,) by Lord Alvanley in Milwaird v. Earl Thanet, (5 Ves. Rep. 720, n. l.) by Lord Erskine in 13 Ves. Rep. 224, and by Chancellor Kent in Benedict v. Lynch, (1 John. Ch. 370.) In the last case the chancellor, after reviewing the leading cases on this subject, says: “ From the review which I have taken of the cases, the general principle appears to be established that time is a circumstance of decisive importance in these contracts; but it may be waived by the conduct of the party: that it is incumbent to [upon] the plaintiff calling for a specific performance to show that he has used due diligence, or, if not, that his negligence arose from some just cause, or has been acquiesced in; that it is not necessary for the party resisting the performance to show any particular injury or inconvenience. It is sufficient if he has not acquiesced in the negligence of the plaintiff, but considered it as releasing him.”
The deed from Mrs. McGown is imperfectly described, nor is it stated whether the delivery of it to Mr. Adriance was absolute or conditional. If it conveyed the title of the land to the defendant McGown, as the plaintiffs contend, that could in no manner benefit them in this controversy. It assuredly vested no equitable estate in them ; as there was no valid and subsisting contract between them and McGown. If the original contract bad still been operative as between the parties to it, the plaintiffs could not have set up this unrecorded deed against, the other defendants if they were bona fide purchasers without, notice; as the conveyance to them was recorded. It is said that some of the subsequent purchasers had notice of the contract between McGown and the complainants before they acquired their title to the premises. True, one of them had been informed of the existence of such contract by Mr. Adriance, but subsequently, and before the purchase, he was told by the same person that it was broken off. It is contended that this intended purchaser should have made further inquiry, but I can see no reason for that. The source of information was the same in both instances. As much credit was justly due to one statement as to the other. Besides, as to some of the purchasers [281]*281there is no pretence that they had any notice at all. Those j co-purchasers were not partners: they were tenants in common ; and a notice to one would not have been a notice to the others. The bill in this cause was no notice, in any sense of the word, to the last purchasers. Sandford took his deed, and executed his mortgage, as early as the 31st of January. The deeds and mortgage were recorded on the 4th of February. The bill was filed on the 3d of February, but neither Sandford nor the defendants for whom he acted were then made parties, nor was any notice of lis pendens filed until several months afterwards. Clearly their title should not be affected by any previous transaction between McGown and the plaintiffs. The decree of the vice chancellor dismissing the bill as to them was correct, and must be affirmed. I think that the vice chancellor erred in deciding that the plaintiffs, supposing that their first contract was still valid and that McGown had put it out of his power to perform it, could retain their bill against him for damages. Where the claim is for damages only, and in this case the plaintiffs had no other, a court of law is the only proper forum. True, a court of equity will sometimes give damages in lieu of a specific performance of a contract; but that, I conceive, is only where it has obtained jurisdiction of the cause on other grounds. Where the defendant has the power to fulfil his contract when the bill is filed, but from any cause becomes unable to do so during the pendency of the suit, or when at the time of making the decree he can perform it in part only, in either case the court having had jurisdiction at first, or having the power to afford partial relief by decreeing a specific performance as far as the defendants can go, can give the plaintiff compensation by way of damages. (Kempshall v. Stone, 5 John. Ch. Rep. 193.) Some of the cases have gone further, but they are not well supported, and we are not inclined to follow them.
The fact that the plaintiffs were ignorant of the want of power in McGown to convey the title when the bill was filed is not averred in the bill, nor does it any where appear; nor, if it [282]*282had been apparent, could their ignorance have conferred jurisdiction upon a court of equity.
So much of the decree as directs a reference to a master tq ascertain and report the amount of damages sustained by the. plaintiffs, by reason of the refusal of the defendant McGown tq convey to them, must be reversed. And the bill must be dismissed, with costs, and the plaintiffs must pay the costs of both appeals.