(g) Contracts in writing relating to land may be waived by parol; but this defence is to be received by a court of equity with caution; for the agreement to waive is as much an agreement relating to lands as the-original agreement. Lord Hardwicke, Ch., Backhouse v. Mohun, 3 Swanst. 435, n. For what is requisite to constitute a waiver, see Robinson v. Page, 3 Russ. 114; Price v. Dyer, 17 Ves. 356. Variations, so acted upon, that the original agreement could no longer be enforced without injury to one party, would be a bar to a specific performance of that original agreement. Sir Wm. Grant, M. R., 17 Ves 364. But variations orally agreed upon, are not sufficient to prevent the execution of a written agreement, the situation of the parties in all other respects remaining unaltered.

(gg) Cuff v. Dorland, 50 Barb. 438.

1 This is probably expressed too broadly. In Mansfield v. Hodgdon, 147 Mass 304, a bill to enforce specifically a covenant to sell land. Holmes, J., says, "It is suggested that Hodgdon understood that the plaintiff was to pay him $1500 for the land subject a material misrepresentation, although this was not made fraudulently, (gh)

Whatever his merits originally, a plaintiff may disentitle * himself to relief by a want of proper candor in setting the facts of the case before the court, (h) or even by an unreasonable and injurious delay in filing his bill, (i)

Indeed, as equity is never bound to give this relief, (j) so it never will, unless the justice of the case, as drawn from all its facts, demand it (k) Hence there must not only be an entire absence of fraud, but an equal absence of oppressiveness; (l) 1 for

(gh) Boynton v. Hazleboom, 14 Allen, 107.'

(h) A plaintiff who makes a wilfully untrue representation of the contract, upon failing to establish it in that form, will not be permitted to insist upon the contract as it is shown to be by the proof. "I never will," said Sir Edward Sugden, L. C, " execute a contract for a plaintiff one way, when with his eyes open he insists in his bill on a different construction against good faith. If he undertakes to perpetrate a fraud, and fails, I shall take care that he fails altogether, and does not obtain the aid of the court at all" Molloy v Egan, 7 Irish Eq. 590, 593. And see Warren v. Thunder, 9 Irish Eq. 871, 376.

(i) Watson v. Reid, 1 Russ. & M. 236; Heaphy v. Hill, 2 Sim. & S. 29. So if the plaintiff, after filing his bill, is guilty of laches in neglecting to prosecute it for a long space of time. Moore v. Blake, 1 Ball & B. 62. As to the defence of the statute of limitations, see Dugan v. Git-tings, 3 Gill, 138. And see, as to effect of delay, Gariss v. Gariss, 1 Green, 79; Van Doren v. Robinson, id. 256, Glasscock v. Kelson, 26 Texas, 150; Miller v. Henlan, 51 Penn. 265.

(j) Vide ante, sec 1.

(k) "I take it to be an established principle of this court not to decree a specific performance of an agreement unless it appears that the party who calls for this peculiar aid of the court has acted not only fairly, but in a manner clear of all suspicion. If there be a reasonable doubt upon the transaction, the court will leave the party to his legal remedy for the non-performance of the contract" Lord Manners, L. C, O'Rourke v. Percival, 2 Ball & B. 62. And see Mason v Armitage 13 Ves. 37. But that the defendant, being vendee, will be the loser by the bargain, by reason of a circumstance seriously affecting the property of which he was unaware, e. a. the existence of a nuisance in the neighborhood, is not, it seems, a ground for refusing the vendor a specific performance. 1 Sugd. V. & P. ch. 7, § 4; Lucas v. James, 7 Hare, 410. "Otherwise, perhaps, if the defect be known to the vendor, and be one which a provident purchaser could not discover." Wigram, V. C, 7 Hare, 418.

(l) Brogden v. Walker, 2 Harris & J. 285. Where the defendant is a man in an inferior position and without professional to a mortgage. But the agreement contains no such qualification, and must be construed as an agreement to convey a good title free from incumbrances, which there is evidence tending to show was the meaning of the parties. . . . If, without the plaintiff's knowledge, Hodgdon did understand the transaction to be different from that which his words plainly expressed, it is immaterial, as his obligations must be measured by his overt acts." See also Shaddle v. Disborough, 30 N. J. Eq. 370 But if facts have been suppressed by a party to a contract, specific performance will not be decreed at his suit, even though he has made no actual misrepresentations. Baskcomb v Beck-with, L. R 8 Eq. 100; Brewer v Brown, 28 Ch. D. 309; Byars v. Stubbs, 85 Ala. 256. In Baskcomb v. Beckwith this was so held, though the suppression of fact was unintentional on the plaintiff's part.

1 Equity will not execute a hard and unconscionable bargain, Starnes v. Newson,

I Tenn. Ch. 239; as well as one procured by fraud or falsehood, Plummer v. Keppler, if a decree would operate more hardly than it should on the defendant, this would be a sufficient reason for withholding it. (m) It is sometimes said, but not uniformly, that the intoxication of the defendant at the time of entering into the contract is no sufficient defence, unless the plaintiff purposely procured or caused that intoxication, and took advantage of it (n)

II C. E. Green, 481; McShane v. Hazlehurst, 50 Md. 107. Specific performance will be refused where the effect would be the imposition of a large expenditure and heavy burden and inconvenience to the public, without any practical benefit to the party seeking it; as where a railroad agreed for a right of way to build a drawbridge, the effect of which would be delay and public detriment, to adroit vessels from a river to a projected canal, which was* rendered useless by the agreements of third persons.

* Although a specific performance is not always denied because the plaintiff has lost an adequate remedy at law by his own neglect; (o) yet where he has permitted the rights of the parties under the contract to be passed upon in an action at law at a time when he might have sought the interposition of equity, a strong case will be required to induce a court of equity to assume jurisdiction of the matter, (p) assistance, and is induced to make a bargain which a better knowledge of the circumstances would have prevented his making, the court may refuse to compel a specific performance. Stanley v. Robinson, 1 Rues. & M. 527.