GOODWIN VS. LYON, 4 Port. 297

COLLIER, J. — The defendant in error filed his-bill against the plaintiff, for the specific performance of a parol agreement, for the sale of land. In the bill it is stated that the parties made an agreement for the purchase and sale of a half

section of land, situate in the Coosa land district, on the twenty-sixth of December, eighteen hundred and thirty-three, by. which the plaintiff received, of the defendant, a horse, estimated at one hundred dollars, and was to receive one hundred dollars on the twenty-fifth December, eighteen hundred and thirty-four ; one hundred and fifty dollars, on the twenty-fifth of December, eighteen hundred and thirty-five; and’ the further sum of one hundred and fifty dollars, on the twenty-fifth .of December, eighteen hundred and thirty-sis. In consideration of which the plaintiff stipulated to purchase the half

section of land in controversy, of the Indian reserves, (who was expected to be located thereon, under the treaty of eighteen hundred and thirty-two,) if he could' do so, and convey the title therein to the defendant. If the purchase could not be made of the Indian, the plaintiff was to retain the horse, for his trouble, and the defendant to pay nothing further. The bill then alleges the location of the Indian ; the purchase of him, by the plaintiff; the certificate of his deed, by the government agent, and its approval by the President.

It is further stated, that in faith of the agreement, the defendant entered upon, and made valuable improvements on the land; and that the defendant paid the plaintiff two hundred dollars, in the notes of one Steed: and, in January, or February, eigteen hundred and thirty-five, tendered him two hundred dollars, and demanded á title, which was refused. The answer denies the agreement set out by the bill — states that the respondent sold to the complainant an improvement, which he owned, on the half

section of land, designated in the bill, for a horse, estimated at one hundred dollars ; and at the same time agreed with him, that if he purchased the land, of the Indian reservee, lie would, convoy ike. title to him, up-* on complainant's paying two hundred dollars, to enable him to complete the purchase from the reservee; and two hundred dollars, in some short time thereafter — either of which sums the defendant denies the receipt of. lie admits that he received two notes, for the payment of one hundred dollars each, on Steed; hut insists that they were delivered to him, as a collateral security, for a note of one hundred' dollars, which respondent held on complainant, due some time previous to the notes of Steed.

Respondent admits that he refused to receive what complainant informed him was two hundred dollars, in specie, for the reason that the payments were not made by him, as he had stipulated to do. The answer admits the possession of the complainant, and improvements made by him, yet relies upon the statute of frauds, as a bar to relief. The depositions taken at the instance of the complainant, tend to prove a contract for the sale of the particular land in dispute; but the terms are stated by none of the witnesses, so as to enable us to determine what they were.

David Conner, in his deposition, states that he understood the land was to be paid for by complainant, in eighteen hundred and thirty-four, eighteen hundred, and thirty-five, and •eighteen hundred and thirty-six; but how much each payment was to be, and what time in each year to be made, we are not informed. — Yet, the witness comes nearer to proving; the precise terms of a contract, than any one examined by the complainant.

It appears sufficiently, that the .sum to be given for the land, if purchased by the complainant, was -four hundred dollars, exclusive of the sum at which the horse was estimated — that the respondent became, the purchaser of the Indian reservee, and had the contract certified to him/ in the spring of eighteen hundred and thirty-four.

For the respondent, the deposition of Jesse Duren, (a witness to whom both parties communicated the terms of their agreement,) proves the contract to have been such as the respondent discloses in his answer — that the parties repeated’ the agreement in his presence, that he might bear witness to it. This witness is sustained by several others, whose testimony was taken by the respondent, In considering the errors assigned, three prominent questions present themselves.

First. — Has the defendant in error made out, by proof, the agreement, the specific performance of which is sought by the bill to be enforced 1 Second — If the case stated in the bill is not made out by proof, would the defendant, if his bill embraced the agreement disclosed in the answer and proved by the depositions, be entitled to a specific performance 1 Third — If the defendant is not entitled to a specific performance of the agreement, should the Circuit Court have awarded an issue of quantum damnifíca-las, to ascertain the value of permanent improvements, with a view to decree him a pecuniary compensation for these 1 1.

We have already said that the depositions taken by the defendant in error, tend to shew an agreement for the sale and purchase of the land in controversy. This agreement was conditional, depending upon the purchase by the plaintiff of the Indian reservee. This purchase was effected; so that the agreement became absolute; yet its terms are not shewn by proof, and as set forth in the bill, positively denied by the answer.

It is true that the price agreed to be paid, is proved; but there is nothing in the record from which we can determine what was the credit, the times of payment, and what the amount of each payment.

Without satisfactory proof to these points, how is it possible for the Courts to ascertain what was the entire agreement between the parties:—and unless this shall be known, how can it adjudge its specific execution 1 The part performance of a verbal agreement being shewn, proof aliunde is admissible to show what the contract was: but part performance can never be held to dispense with evidence of the particular terms of the agreement—and to authorise a decree for its consummation where these do not appear.

In the case of Rowton vs Rowland—it was the opinion of the Court of Appeals of Virginia, that where the evidence of a verbal agreement is contradictory, the statute of frauds is especially applicable.

In the case of Parkhurst vs Van Courtlandt.—it was held, that certainty in the proof of the terms of a parol agreement for toe sale of lands, was essential to authorise a decree for a specific performance.— That, the Court cannot, and ought not to male bargains for parties, or to determine what- one party ought to give and the other to take; and in the case of a lease, whether it ought to be for years or for Ife or lives, or in fee, and the amount of the rent, and whether payable in money or in produce, and in what periods.

If there is uncertainty as to the essential terms of written contracts, Chancery will not decree a specific execution. Do not the same principles and authorities which inhibit its interference in such cases,, apply with at least equal force to agreements resting in parol. — Jonham vs Child.

The learned Chancellor, in the case of Parhhursl et al vs Van Courtlandt, remarks, that “ the general language of the books is, that performance will not take a parol agreement out of the statute, unless the terms of the agreement distinctly appear, or are made out to the satisfaction of the Court.” To the same effect is the case of Phillips vs Thompson: in which case ^ is said to be well settled, that “if a party sets UP Part Pei’f°rmance, to take a parol agreement out of the statute, he must shew acts unequivocally referring to, and resulting from, that, agreement.”— Again: “ There must be no equivocation or uncertainty in the caseif the existence of the contract be not made, out by clear and satisfactory proof, as laid in the hill, there can be no decree for its enforcement.

And further, it is not enough that there be evidence of some agreement, but it must be unequivocal and satisfactory evidence of the particular agreement charged in the bill.

The case of Parhhurst, et al vs Van Courtlandt was taken to the Court of Errors, by appeal, and the Chancellor’s decree there reversed : but without unsettling the principle, that the agreement relied on, must be clearly and satisfacto rily proved In equity,, as at law, it is well settled, that the allegata et probata must correspond; and however strong may be the proof of a complainant, and however clear his title to the aid of the Court, it is wholly immaterial if the allegations of his bill are not in harmony with his testimony — if cannot be received and regarded by the Court. — Drury, et al. vs Conner, et al.

In regard then to the first question, we think it clear that the defendant in error has failed to make good the case stated in his bill, by proof, and that the agreement,' shewn by the witnesses for the plaintiff, is not admissible, to make out the defendant’s case; for the reason that the allegations of the bill are unsuited to it. 2. Let it be repeated that the contract proved by the plaintiff’s witnesses required the defendant to pay him two hundred dollars at the time of the certification of his contract of purchase from the Indian, and two hundred dollars in some short time thereafter.

If time be not an essential ingredient of the contract, the defendant might, upon submitting to perform his part of it, call on the plaintiff in equity, to execute it.

Time may be of the essence of the contract, and always is, where it is made so by its terms; and some able Chancellors have considered it to be so in every case in which the party who seeks- relief has been in default himself, without any just excuse, or any acquiescence or subsequent waiver by the other party- Lord Loughborough, in the authority last cited. re_ marks — “ There is nothing of more importance, than that the ordinary contracts between man and man which are so necessary in their intercourse with each other, should be certain and fixed ; and that it should be certainly known, when a man is bound, and when Dot There is a difficulty to comprehend how the essentials of a contract should be different in equity and at law.

It is one thing, to say the time is so essential, that in- no case, in which the day has been, by any means suffered to elapse, the Court would relieve against it, and decree performance. The conduct of the parties, inevitable accident, &c., might induce the Court to relieve. But it is a different thing, to say the appointment of a day, is to ha ve no effect at all; and that it is not in the power of the parties, to contract, that if the agreement is not executed at a particular time, they shall be at liberty to rescind it.

In most of the cases, there have been steps taken.” Again, — “ I want a case, to prove, that where nothing has been done by the parties, this Court will hold, in a contract of buying and selling, a rule, that the time is not an essential part of the contract. Here, no step had been taken, from the day of the sale, for six months after the expiration of the time at which the contract was to be completed. If a given default will not do, what time will do'l An equity arising out of one’s own neglect !

It is a singular head of equity.” This argument, alike distinguished for its perspicuity and force, induced the Lord Chancellor to conclude, in that case, that, as the vendor had omitted, for six months, to complete the purchase, he must he considered, after such a long default, to have abandoned the contract. As the principle embraced in the question we are examining has never been very elaborately considered in this Court, it may be proper to inquire how it stands upon authority.

In Milward vs Thanet the master of the rolls rc-marked, that Lord Ken you was the first who opposed the idea, that a party might come at any time to enforce an agreement; and observes, that then, it was well understood, that a party cannot come into equity, for a specific performance, unless he had shewn himself ready, desirous, prompt and eager.

In Guest vs Hornfray, the delay was hut three months, yet, in a bill filed by the vendor, to compel the vendee to accept, the title, and perforin his part of the agreement, the; Court held, that as the complainant liad not shewn that he had done all that he could, to he ready to carry the agreement into effect, at the time prescribed by its terms, and as the delay had never been approved or acquiesced in, the bill was dismissed. •The case of Alley vs Deschamps, is analogous, nof only in principle, but in its circumstances, to the case before us. There, the purchaser filed a bilí for a specific performance.

The purchase money was to be paid in instalments; the purchaser was put into possession. He paid one hundred pounds upon the footing of the contract. The bill was filed before the last instalment became due. The respondent, in his answer, stated that he considered the contract as aban-donded. The Lord Chancellor observed, that he, should take it, that the agreement had not been relinquished ; that the complainant had not consented to rescind it, yet, under the circumstances, there was no pretence for decreeing a specific execution ; that the bill, under the circumstances, could not be entertained.

It was not permissible, for parties to lie by, to ascertain whether the contract was likely to prove a gaining or losing one, and either claim its performance or abandon it, according to the event— considering the lapse of time as nothing. — That but one small payment was made, and nothing proposed, until, by a subsequent event, the premises became much more valuable, than at the time the contract took place. In the cases of Pinche vs Curtis and Fordyce vs Ford, the delay was brief and acquiesced in by Ihe parties who endeavored to take advantage of it.

In the last case, Lord Alvanley observed, that the Court would not lend its aid to enforce the contract in favor of a party guilty of gross negligence; and that it must not be understood, from that decision, that a man was to have his own time to perform his contract. Lord Hardwick held, that it was the duty of a Court of equity to relieve against lapse of time in the performance of a contract, and especially where the non-performance has not arisen by the default of the party seeking to have a specific performance.

It may also be laid down as correct, that where one has been backward in performing his part of the agreement, Equity will not decree a specific performance in his favor. • In the case of Benedict vs Lynch, the learned Chancellor says, it may then be laid down as an acknowledged rule in Courts of Equity, (and so the rule is considered in elementary treatises on this subject') that where the party who applies for a specific performance, has omitted to execute his part of tjie contract,, by the time appointed for that purpose, without being able to assign any sufficient justification or excuse for bis delay, and when there is nothing in the acts or conduct of the other party, that amounts to an acquiescence in that delay, the Court will not compel a specific performance.

The rule ■appears to be founded in the soundest principles of policy and justice-. Its tendency is to uphold good faith and punctuality in dealing, &c.” In the case of Doloret vs Rothschild the Vice Chancellor, in delivering his opinion, says — “ Where a Court of Equity holds that time is not of the essence of a contract, it proceeds upon the principle, that having regard to the nature of the subject, time is immaterial to the value, and is urged only by way of pretence and evasion.

But that principle can have no application to a case like the present, where, from the nature of the subject, the value is exposed to daily variation, and a contract which was disadvantageous to the plaintiff, on the first of February, and w’ould therefore be declined by him, might he highly advantageous to him on the second of February.” In this case it is also supposed that there may be a conditional, waiver of the time; and unless the condition has not been complied with, the party insisting on time is not precluded.

We are aware that there are adjudged cases, in which it is laid down that time is never of the essence of a contract, in equity, unless made so by express stipulation. As, where it is agreed, that one or both the parties shall do such

an act or acts, and in the event of a non-performance, that the agreement be void. These cases can not be adhered to at this day — they are incompatible with that morality which should be observed in the performance of contracts: and are overruled by the weight of opposing authority.

The proof shows, that at least eight or ten months were suffered to elapse, after the plaintiff’s purchase from the Indian was certified, (and when the defendant should have paid him two hundred dollars,) before he made an offer to pay him any part of the sum agreed as the value of the land ; and then only-proposed to make a payment of two hundred dollars, if a deed was executed, conveying to him the title.

The defendant was obliged, by his contract, to have paid four hundred dollars, before he could demand a title, (no time being fixed, when it should be made.) The notes of Steed, which, by agreement of the parties are.copied, into the record, as part of the evidence, are for one hundred dollars each, and are payable several years after the contract was entered into, and nearly as long after defendant’s note to the plaintiff, for one hundred dollars, became due.

The defendant alleges that these notes were received' in part payment of the purchase money for the land.— The answer denies it, and insists that they were received as a collateral security for defendant’s note to theplaintiff. The answer, in this particular, both negatives and avoids the allegations of the bill; but, the matter of avoidance occurring simultaneously with the reception of the notes, it must be taken to be part of the res gestee, and as such, evidence for the plaintiff.

According to this view of the case, the defendant has not moved in the performance of his part of the contract, either by paying money, or offering to pay, but with a requisition he could not make.

Again — the proof shews, that the land, at the time of the purchase from the Indian, was not worth more than from three to five hundred dollars, so that the defendant's contract was on fair terms, only, without being greatly advantageous to him — consequently, his anxiety to consummate it could not have been so great, then, as at the time of the exhibition of his bill, when it had advanced in value at least one hundred per cent. The price of lands, in this country, we know, as a matter of history, has increased rapidly, and to an enormous extent, in the last four or five years.

Had the defendant have performed the agreement, on his part with punctuality, as events have shewn, the bargain would have been advantageous to him ;• and, in all probability, would not have been disadvantages to the plaintiff, who, it seems, was engaged in speculation in Indian lands, and could have reinvested his money to profit. But, it can not be in-= dured, that the defendant should lie still, until he ascertains that his bargain is beneficial, and then, by offering to perform his part, enforce its execution.

So, that whether we adopt the rule as to time, irt the unqualified terms in which it was laid down, in Benedict vs Lynch, or take it as applied in Bohr el vs Rothschild, it is clear, that it is not competent for the defendant to enforce the agreement set up in the an--swer. We think, however, that the true rule on this subject is as we have quoted it from the former case. —It is one which can work injury to no person, and is calculated to advance integrity and punctuality in dealing.

Third. — Having shewn that the defendant in error was not entitled to a decree for the specific performance of the agreement set out in his bill, because he has failed to prove it — and, that the plaintiff denied it, by his answer, and set up an agreement very different in its terms, and has proved such to have been the agreement of the parties, — and, having shewn, that Equity would not execute this contract, at the suit of the defendant, on account of laches in the performance of his part of it — it remains, to inquire, whether the cause should be remanded, that an issue of quantum damnificatus may be awarded.

Where it appears that a contract for the sale and purchase of lands was made, upon the faith of which the vendee took possession and made valuable and permanent improvements, though he can not coerce its specific execution in Equity, either because the agreement is imperfect, or its precise terms can not be shewn, the bill should be retained, to decree a pecuniary compensation equivalent to the improvements. If equity did not afford this redress, the.ven-dee would sustain an injury, for which he would be remediless, or else have a remedy at law, at best doubtful and inadequate.

Chancellor Kent, in the case of Phillips vs Thompson, in examining this subject, says — “ I have no doubt of the jurisdiction of this Court over this case, and that it can cause the damages to be assessed either by a reference to a master, to inquire into, and report them, or by an issue of quantum damnificatus. The case of Denton vs Stewart, before Lord Kenyon, when master of the Rolls, was to this effect.

That case was afterwards approved ad followed by Sir William Grant, in Greenaway vs Adams.'” Again — “ The'cases are numerous, in which the , Court of Chancery has caused damages to be assessed, either by an issue, or by a master, at his discretion^ — Hedge vs Everand; Cudd vs Rutter ; Errington vs Aynesley. I believe, the more usual course, where the damages are not a matter of mere com-potation, is by awarding an issue; and, under the circumstances of this case, I deem it the more advisable method.” — Parkhurst vs VanCortlandt.

If nothing more appeared in the cause, relating to o 1 i. j o an agreement, than what is stated in the bill, and what may be gathered from the depositions taken by the complainant — (in as much as these shew some agreement, yet so imperfect that it can not be enforced specifically,) we should remand the cause, that an inquiry might be made of the value of improvements made in faith of its performance. But, when we look into the answer, and the depositions taken to sustain it, the case assumes a different aspect.

The contract which they make out, disproves the case stated by the bill, and shews an agreement not imperfect in its terms, but one that can not be enforced at the suit of the defendant, because of his neglect, in refusing to comply with the stipulations, on his part. The contract, then, being relinquished by the defendant, the parties are to be remitted back to their rights, as if no contract had ever been made. This being the predicament of the defendant, caused by his own neglect, let us inquire if he had entered without a license, or even by permission, and made improvements, if he could recover their value.

A party can not claim a compensation for a trespass by himself, on the ground, that the party against whom it was committed, had derived a benefit. And there is quite as little pretence in favor of a claim to compensation, where one, entering under a naked license, makes improvement. The defendant comes into Court, thus circumstanced, — lie can not insist on an agreement, either perfect or imperfect, under which he expended money or labor, and consequently having sustained no damages which the plaintiff can.be called on to compensate, an issue cannot be directed to enquire of the extent of them.

If the contract be as the plaintiff has maintained it to be, or as the defendant insists it was, in either case our decree may operate hardly upon the defendant.

Be this as it may, we do not sit here to mould .and change the principles of law, so as to prevent the least amount of individual injury in each case, but we endeavor to ascertain and apply these principles, so as to be most promotive of justice in all: esteeming it far better, that, in a few cases, loss should be sustained, than that general principles, intended to control the affairs of an entire community, should be made to bend.- — Jackson vs Sill (by Mr.

Justice Thompson,) The result of our reflections is, that the decree of the Circuit Court must be reversed, and the bill dismissed, without prejudice to an action or actions at law, or bill in equity, to recover back money or property paid or delivered upon the faith of an agreement, for the purchase of the land in dispute. And, the defendant, failing to establish a right, it is further ordered and decreed, that he pay the coste of this Court, and the Circuit Court.

JFonb.E. 172 1 Hon. & Munf. 91. llohn.Ch 'R.281. 1 Bro. 82. tAmb. 586 2 Sciff & 459l_3Atk 47o"uVes’ 4 johnny R-15, 6Har.& J.288;also 4Eng.con 2 story’s ®*e^5’’6j johns.c.R, yesTss* Bro. 469. 5¥<!3"720 sib. sis. c;¡:i3ib.224 t4it>r°494^ nves 450 53Jiner> 37onS’C vNewiand SugCL tf’ Ven. 26s ch^so-i ch’r'™'] ti Fanb 38 565y'nanb! and X Ves. jr. 339. i2Ves395 ffitonbm. Ab.is.pi.r 570. 2Bl0'341 1 Johns. Cb.R.273; 2Scho-5¡' Lef 513* 11 Johns 220.