factory to appellant's agents the contract upon which this suit is based was prepared and signed, and is as follows: "Contract for Sale of Real Estate.

"CHICAGO, April 1, 1910.

"Received of F. Bethig (for the Turn Verein Eiche) fifty and no/100 dollars, as part payment toward the purchase of the following described real estate: Lots 16, 17 and 18, block 2, Kionka subdivision, which is hereby bargained and sold to the said F. Bethig (for the Turn Verein Eiche) for the sum of eleven thousand and ninety (11,090) dollars, eleven thousand and forty (11,040) dollars more to be paid on the delivery of a good and sufficient warranty deed of conveyance of the same within fifteen days from this date, or as much sooner thereafter as the deed is ready for delivery, after the title has been examined and found good, and the balance to be paid as follows: None. The said F. Bethig (for the Turn Verein Eiche) to assume all taxes and special assessments legally levied subsequent to the year 1909; also to assume all unpaid installments on special assessments legally levied and payable subsequent to the year 1909. Should the title to the property not prove good then this $50 to be refunded. But should the said F. Bethig (for the Turn Verein Eiche) fail to perform this contract on his part promptly at the time and in the manner above specified, (time being of the essence of this contract,) then the above fifty and no/100 dollars shall be forfeited by him as liquidated damages and the above contract shall be and become null and void. P. B. KIONKA, (Seal.)

F. BETHIG, (Seal.) For the Turn Verein Eiche. (Seal.)"

Appellant did not have the money to pay for the lots. It had in the neighborhood of $3000, and took up the matter with a representative of the Pullman Bank, and also with officers of the Joliet Brewing Company, of borrowing money to pay for the lots and the buildings to be erected thereon. The purpose of the society was to erect a building at a cost of $60,000 or $65,000. At a meeting of the appellant society held Wednesday evening, April 13, a resolution was adopted for the appointment of a committee to secure an extension of time for the completion of the purchase of the property from appellee, in order to give the society time to raise the money. The minutes of the meeting recite that VanMeter and Wild, members of the so

ciety, volunteered to serve as such committee, and that subscription lists were given out for the purpose of securing donations from the members of the society. On Friday, April 15, VanMeter and Wild called upon appellee to talk with him about an extension of the contract. VanMeter did not testify as a witness. There is a conflict between the testimony of Wild and appellee as to just what the conversation between the parties was, but it is not claimed by appellant that an extension of time was agreed to by appellee. That night Wild and another party named Bethig talked to appellee about extending appellant leniency upon the payment of a further sum of money. They testified appellee first spoke of $500 and finally said he must have $2000 in cash, and refused to accept the check of either of the parties for that amount. It was after banking hours and they did not have in their possession that amount of cash. The next day, which was Saturday, the 16th, F. H. Novak and Wild called upon appellee. Novak was the attorney who brought the suit for appellant and acted in that capacity until a part of the evidence was heard before the master in chancery, when he withdrew as counsel in the case and testified as a witness. He testified that when Wild introduced him to appellee as appellant's attorney and stated they came to see about the property, appellee replied that they were too late, that the time was up, to which Novak replied the contract would not expire until the 17th, which was Sunday, and that under appellee's own construction of it they would have until Monday to close the deal. It was Novak's contention,and that is appellant's position in this suit,—that it was the duty of appellee to furnish an abstract of title, and that appellant would have a reasonable time after receiving the abstract of title to examine it and investigate the title. He testified appellee said he could not get the abstract until Monday, as it was locked in a safety deposit vault in a bank that closed on Saturday noon, and inquired if the

witness would come back Monday. Novak said he could not do so but it was agreed that Wild should return Monday, at which time appellee would have the abstract ready. Wild testified he called at appellee's place of business Monday, about eleven o'clock, and told appellee he had come to see him with regard to the abstract; that appellee said all right, they would go down-stairs to the place where the papers were. They went to the place where the papers were, which was a bank, and a Mr. Wolf, who was connected with the bank, got a deed executed by appellee and wife and acknowledged before Wolf, with a blank where the grantee's name should be, and also an abstract relating to the title. Wolf and appellee told Wild that upon the payment of the balance of the money the deed and abstract would be delivered to him. Wild did not have the money and appellee refused to deliver the abstract and deed to him. Appellee testified that Wild and he went to the bank where the papers were; that Wolf produced them and told Wild he could have them upon the payment of the balance of the purchase money; that Wild said he would not pay it and Wolf refused to deliver the papers to him. Wolf testified substantially to the same thing.

It is not claimed by appellant that it offered to appellee the balance of the purchase price of the property within the fifteen days specified in the contract, but it contends that its failure to do so was the fault of appellee; that it was the duty of appellee, under the written agreement, to furnish it an abstract of title and give it sufficient time to investigate it for the purpose of determining whether the title was good, and it is contended the refusal of appellee to furnish an abstract was the cause of appellant's failure to perform the contract on its part within the time specified. We do not agree with that construction of the contract. Appellee was under no obligation to furnish an abstract of title. His contract was to make a warranty deed within fifteen days, or sooner if upon examination the

title was found good and the balance of the purchase price paid. Nothing whatever is said about furnishing an abstract. Under the terms of the contract it was the duty of appellant to examine the title and determine whether it was good or not, and if satisfied with the title notify appellee and offer to comply with the terms of the agreement on its part. We think the proof warrants the conclusion that the real reason for the failure of appellant to perform its part of the agreement within the time limited was that it did not have the money. It had some negotiations with an officer of the Pullman Bank and certain officers of a brewing company, and witnesses testified they had received promises of the money, and the president of the brewing company testified he was ready, on twenty-four hours' notice, to furnish the balance of the money to pay for the property. Nevertheless, the money was not forthcoming during the lifetime of the contract, and, as we have seen, on the 13th of April a committee was appointed to secure an extension of time. Appellee offered to extend the time upon the payment of $2000 in cash. This sum was not paid, and he was under no obligation to extend the time and was under no obligation to offer to fulfill his part of the agreement after the time fixed by the written agreement expired.

In our view appellant's proof entirely fails to meet the requirement necessary to authorize a decree for the specific performance of a contract to convey real estate. The rule is that specific performance can never be demanded as a matter of absolute right. It rests in sound judicial discretion, but where all the necessary incidents and conditions. are proven by satisfactory evidence, the relief should be decreed as a matter of right and not as a mere favor. (Evans v. Gerry, 174 Ill. 595.) The party seeking to enforce specific performance must prove he has complied with, or that he was able, ready and willing to comply with, the terms of the contract but was prevented from doing so by the

refusal of the other party to perform it on his part. The proof in such cases must be clear and satisfactory. (Ralls v. Ralls, 82 Ill. 243; Rutherford v. Sargent, 71 id. 339; Hatch v. Kizer, 140 id. 583.) Where the parties have made the time of performance material, a court of equity has no power to enforce performance contrary to the expressed intention of the parties, (Skeen v. Patterson, 180 Ill. 289,) and courts will indulge no presumptions in favor of a waiver or abandonment of the contract, nor will they infer waiver or abandonment from slight proof. Evans v. Gerry, supra.

It seems very clear that appellant did not make a case entitling it to have the contract specifically performed. The decree is affirmed. Decree affirmed.

THE CACHE River Drainage DISTRICT, Appellee, vs. THE CHICAGO AND EASTERN ILLINOIS RAILROAD COMPANY, Appellant.

Opinion filed October 26, 1912.

1. Drainage—when an assessment of benefits to entire right of way is not objectionable. An assessment of drainage benefits to a railroad right of way in the district as an entirety is not objectionable, even though a particular part of the right of way, by itself, may not be benefited, provided the benefits assessed do not exceed the benefits to the whole right of way in the district.

2. SAME-commissioners' roll is prima facie evidence of benefits. Upon the question whether the amount assessed against land for a drainage improvement exceeds the amount of benefits to the land, the commissioners' roll is, by statute, prima facie evidence for the commissioners and entitles them to judgment in accordance therewith, unless the prima facie case is overcome.

3. SAME-what does not show that railroad right of way is assessed more than its proportionate share. The mere fact that farm lands adjoining a railroad right of way are not assessed to exceed $3.08 per acre whereas no acre of the railroad right of way is assessed less than $41.66, does not, of itself, establish that the railroad right of way is assessed more than its proportionate share of the estimated cost.