The opinion of the court was delivered, March 14th, 1859, by
— Without admitting, we may assume that there is here a contract of sale that equity would enforce, if properly performed by the party asking its enforcement; and that it might, in such circumstances, be set up as title against the vendor’s right of distress under a former lease; and this brings us to the question, would equity enforce the contract under this evidence.
It was made in December, 1853, and the chief consideration was $2000 in stock of the Chartiers Coal Company. No time was fixed for payment, and therefore it was payable presently; yet payment was not offered until August, 1855. In the meantime, the coal company had totally failed, and all its effects had been sold out by the sheriff, and the plaintiff became the purchasér, and thus the stock had become utterly valueless. This was such a change of the circumstances existing at the time of the contract, as makes the plaintiff’s delay matter of essential importance in equity. The plaintiff held on to his stock, and to the advantages to be gained from it, and from his power as the holder of it, until it became worthless, and then he tendered it. If the company was failing, he ought to have transferred the stock promptly, and then the defendant might have used the corporate power which it conferred, so as to save the company, and his own investment, from the threatened wreck. The contract furnishes no ground of equitable defence.
Judgment affirmed and record remitted.