Larison against Burt, 4 Watts & Serg. 27

The opinion of the Court was delivered by Sergeant, J. — Under the circumstances of this case, the principle of equity is, that although a plaintiff who has failed to perform his part of the agreement, or where it has become impossible for him to perform it, cannot insist on a specific performance by the defendant, yet, if he has performed so much of his part of the agreement that he cannot be put in statu quo, and there is no default in not performing the residue, or he is prevented from completing it by the default of the defendant, he is entitled to specific performance. Ch. Cas. 26; Finch 445; 2 Ch.

Cas. 18, 19; Prec. Ch. 312; Gilb. Rep. 70, cited 1 Mad. Ch. 218. In the case before us these points seem to concur. Burt has given Larison judgment in the ejectment. He has enabled Larison to obtain a title, and to hold rightful possession of 145 acres, part of the 200 acres formerly in dispute, and for which Burt had obtained a decision in his favour before the board of property; besides which, Larison has enjoyed the 75 acres now demanded.

It is impossible now to put things in the state they were in before the agreement of the 20th September 1837; and to rescind the contract without doing so, would, independent of other circumstances, be highly inequitable. Then, again, it is to be inquired, by whose default it was that the timber was cut off? It is clear, it was not the act of the plaintiff, as none of it appears to have been cut by him or with his knowledge or consent.

If any default, in this respect, is chargeable on either of these parties, it is imputable rather to Larison than to Burt; for by the express tenor of the agreement, Larison was entitled to have the possession of these 55 acres forthwith, after the agreement was made; but it does not appear that he ever demanded possession, or looked after his property. He chose to lie by for three years, and let it take care of itself.

Had Larison called on Burt for possession of his 55 acres, and had Burt, without cause, refused it, there might have been some colour for throwing the blame of any loss, afterwards occasioned by marauders, on Burt. As Larison never did this, Burt can be considered, at the utmost, as his bailiff or steward, or in nature of a guardian, holding the land in right of Larison, bound to bestow ordinary care and diligence in taking care of the land, but not answerable for trespasses committed by third persons, strangers, without his knowledge or privity. A guardian is not punished in waste, for waste done by a stranger.

Fitz. N. B. 60; Bac. Ab., tit. Waste. Nor is a tenant at will answerable even for permissive waste. Ibid. I do not perceive, under these circumstances, that the defendant can justly complain of the plaintiff, of whom he never demanded the possession, or a deed, or took any steps towards carrying out the stipulations of the agreement by which he was to have the possession immediately, and a title at a convenient time.

But it is said, that if specific performance is to be enforced by this ejectment, the defendant should be allowed compensation for the value of the timber-trees cut; and that this should have been done by means of a conditional verdict. In a proper case, certainly, under our practice, compensation might be allowed in ejectment, by a verdict for the plaintiff, subject to the condition of his not enforcing the judgment till he had paid a certain sum of money, ascertained by the jury.

But for the reasons I have given, I am by no means clear in my opinion that this is a case in which a chancellor would decree compensation. It is sufficient, however, to say, that the defendant below did not ask compensation. He resisted the plaintiff’s recovery in toto, and required a verdict in his favour on the facts in evidence. Upon the case as presented to the court below, and here, we think there is no error in the charge of the court on record. Judgment affirmed,