dor of an intention to resort to the strict terms of the contract before a forfeiture may be declared. So it has uniformly been held in this state that, where a purchaser of land, under a contract for a deed containing a clause making time of payment of the essence of the contract, is in default of payments thereunder and the vendor has not taken advantage of the terms of the contract and insisted upon strict compliance therewith, such vendor has lulled the purchaser into a sense of false security and, before he can take advantage of his option to cancel the contract and forfeit the payments made thereunder, he must reinstate the time essence clause by a notice giving the purchaser a reasonable time in which to pay up his defaults: Graham v. Merchant, 43 Or. 294 ( 72 P. 1088); Miles v. Hemenway, 59 Or. 318 ( 111 P. 696, 117 P. 273); Gray v. Pelton, 67 Or. 239 ( 135 P. 755); Massey v. Becker, 90 Or. 461 ( 176 P. 425); Johnson v. Berns, 111 Or. 165 ( 209 P. 94, 224 P. 624, 225 P. 727); Ewing v. Ryan, 113 Or. 225 ( 231 P. 981); Lea v. Blokland, 122 Or. 230 ( 257 P. 801); Olson v. Pixler, 138 Or. 250 ( 6 P.2d 23); Johnson v. Feskens, 146 Or. 657 ( 31 P.2d 667). Under the facts proved in this case, it is clear that the time essence clause of this contract was waived by the consent and conduct of Mrs. Welch in accepting numerous payments long after they had become due and of lesser amounts than those contracted for.

The defendants, having induced the plaintiff to omit paying the July and August installments, could not avail themselves of the provision of the contract which permitted them to declare the entire balance due, when an installment had been omitted, without first making a demand and affording the plaintiff a reasonable opportunity to pay the two omitted installments. Ewing v. Ryan, 113 Or. 225 ( 231 P. 981); Massey v. Becker, 90 Or. 461 ( 176 P. 425); Graham v. Merchant, 43 Or. 294 ( 72 P. 1088); Estrich, Installment Sales, section 311. This assignment of error discloses no occasion for a reversal.

plaintiffs waived their right to foreclose upon ten days' notice. Defendant relies on Ewing v. Ryan et al., 113 Or. 225 ( 231 P. 981); Gray v. Pelton, 67 Or. 239 ( 135 P. 755); Kingsley v. Kressly, 60 Or. 167 ( 111 P. 385, 118 P. 678, Ann. Cas. 1913E, 746); Merrill v. Hexter, 52 Or. 138 ( 94 P. 972, 96 P. 865); Neppach v. Oregon Cal. R.R. Co., 46 Or. 374 ( 80 P. 482, 7 Ann. Cas. 1035); Graham v. Merchant, 43 Or. 294 ( 72 P. 1088); Williston on Contracts, §§ 595, 600, 690. The rule relied on by defendant to the effect that a vendee who is lulled into security by the indulgence of the vendor cannot after default be deprived of the right to notice from the vendor before a forfeiture will be enforced is firmly fixed in the jurisprudence of this state.

"It is a well settled rule of law that where the provision of a contract making time of the essence is waived by the vendor, he thereafter cannot exercise his rights under the forfeiture clause until he has given notice to the vendee of his intentions in this regard and has also given the vendee a reasonable time in which to perform his part of the contract. Graham v. Merchant, 43 Or. 294, 72 P. 1088; Maffet v. Oregon California Railroad Co., 46 Or. 443, 80 P. 489; Ewing v. Ryan, 113 Or. 225, 231 P. 981; Rynhart v. Welch, 156 Or. 48, 53, 65 P.2d 1420, and authorities therein cited."

When they were not, he refused to perform his contract and his action was upheld by the court. In Ewing v. Ryan, 113 Or. 225, 231 P. 981, specific performance was denied because the vendor had properly declared a forfeiture under an optional forfeiture clause. In Fox v. Fridrich, 96 N.J. Eq. 456, 126 A. 535, the vendee told the vendor on the due date that he wouldn't perform, thus repudiating the contract and furnishing grounds for refusal of specific performance.

The reasoning in Butler v. Cortner, 42 Idaho 302 at page 308, 246 P. 314, though on a reverse situation, sustains our conclusions herein. Other cases to like effect are: Grimes v. Steele, 56 Cal.App.2d 786, 133 P.2d 874 at page 876; Suburban Homes Co. v. North, 50 Mont. 108, 145 P. 2; Thompson v. Lincoln Nat. Life Ins. Co., 110 Mont. 521, 105 P.2d 683 at page 685; Simmons v. Harris, 108 Okl. 189, 235 P. 508 at page 512; Higinbotham v. Frock, 48 Or. 129, 83 P. 536; 120 Am.St.Rep. 796; Kemmerer v. Title Trust Co., 90 Or. 137, 175 P. 865; Epplett v. Empire Inv. Co., 99 Or. 533, 194 P. 461 and 700; Ewing v. Ryan, 113 Or. 225, 231 P. 981 at page 982; Geroy v. Upper, 182 Or. 535, 187 P.2d 662 at page 665, 173 A.L.R. 1355; Garrett v. Sparks Bros., 61 Wn. 397, 112 P. 501; Shorett v. Knudsen, 74 Wn. 448, 133 P. 1029; Dill v. Zielke, 26 Wn.2d 246, 173 P.2d 977. The statute of limitations did not begin to run until demand for payment and notice of forfeiture upon non-compliance.

It is a well settled rule of law that where the provision of a contract making time of the essence is waived by the vendor, he thereafter cannot exercise his rights under the forfeiture clause until he has given notice to the vendee of his intentions in this regard and has also given the vendee a reasonable time in which to perform his part of the contract. Graham v. Merchant, 43 Or. 294, 72 P. 1088; Maffet v. Oregon California Railroad Co., 46 Or. 443, 80 P. 489; Ewing v. Ryan, 113 Or. 225, 231 P. 981; Rynhart v. Welch, 156 Or. 48, 53, 65 P.2d 1420, and authorities therein cited. By accepting numerous payments after the plaintiffs were in default, Carleton waived the time essence clause of the contract.

Epplett v. Empire Inv. Co., Inc., 99 Or. 533, 541, 194 P. 461, 700. See also Graham v. Merchant, 43 Or. 294, 305-6, 72 P. 1088; Mitchell v. Hughes, 80 Or. 574, 583, 157 P. 965; Ewing v. Ryan, 113 Or. 225, 228, 231 P. 981; Feehely v. Rogers, 159 Or. 361, 371, 76 P.2d 287, 80 P.2d 717; Grider v. Turnbow, 162 Or. 622, 640, 94 P.2d 285. It would seem, therefore, that the action of the sellers' assignee, in making inflexible demands for possession of the edger without giving the buyers the alternative of paying the remainder of the sale price, is to be regarded as inequitable.