86 Va. 75 | Va. | 1889
delivered the opinion of the court.
This suit was instituted by the appellant to compel specific performance by the appellee of a contract dated August 15th, 1884, for the sale of a lot of land.
On the 11th of August Ford offered to buy of the appellee, Euker, sixty feet on Broad street, between Seventh and Eighth streets, running back one hundred and thirty-six and one-half feet, at $200 per front foot, to be paid for by the assumption of a debt secured thereon of $12,000. On the 15th of August Eúker accepted the offer in writing. A few days afterwards, by a writing, not dated, the same contracting parties made another more formal agreement as to this lot of sixty front feet • and twenty more front feet adjoining, by which it was mutually agreed that- the first lot, the subject of the first agreement, and the other lot adjoining, of twenty feet, should be sold by Euker to A. J. Ford, Jr., the son of the appellant, Ford, at a different price, and the right was reserved to Euker until the 1st day of July, 1889, to pay to Ford $1,833 34, and to have a reconvey-anee of the twenty-foot lot by Ford to him. Euker’s wife not having been consulted, being absent, upon her return to the city refused her consent to the agreement, and Euker declined to proceed further in the matter, and in March, 1885, the appellant instituted an action at law for damages against Euker. This suit was not tried, and in December, 1886, the property-mentioned in the agreement having greatly increased in value— stated in the evidence at $3,000—the appellant filed his bill for
This decree, under the circumstances, was plainly right. In the first place, Ford could not be entertained in a suit to enforce the contract of the 15th of August, he having procured and become a party to another agreement a few clays afterwards, by which it was agreed that this land should be conveyed to another person. The vendee was changed, the tract or parcel of land was changed, the purchase price was changed; and the vendee in the first agreement agreed to all these changes -by signing the second contract. By the second contract the rights of Ford under the first were waived, yet the suit was brought on the first contract in the name of the vendee in the second 'contract. Ueither A. J. Ford nor any other person could require specific performance of the contract of August 15, 1884, it having been renounced by the parties thereto. In the next place, when Euker refused or was unable to fully perform the contract, because of his wife’s refusal to unite in the deed, Ford did not at once seek the specific enforcement of the same, did not offer as now to waive the wife’s signature, but instituted .an action for damages, and after the value of the pro
It does not appear that Ford ever offered to pay the purchase price in discharge of the lien, or that he ever, in the name of A. J. Ford, Jr., offered or manifested any anxiety on the subject until the circumstances had all changed. And, moreover, it does not appear upon what principle Euker could have compelled A. J. Ford, Jr., to perform on his part the act of executing the contract by A. J. Ford, Jr., or by his agent or attorney or other person for him, having been entirely omitted. A. J. Ford, Senior, signed and so consented that the contract might be made with another, and his own contract for the same contract cancelled, but any execution on the part of A. J. Ford, Jr., seems to have been regarded as wholly immaterial.
If Euker had sought to compel specific performance of this contract, he could have compelled nothing as against the vendee, because he had agreed to nothing, either directly or indirectly, the contract not being executed by him, nor by any agent for him. If Euker had so sought to compel A. J. Ford to perform, he would have heen without remedy, because, by its terms, the contract was not with him.
But if A. J. Ford could be considered as identical with A. J. Ford, Jr., or if he could be held to be the authorized agent of A. J. Ford, Jr., neither of which is claimed, still the decree of the chancery court was right. Specific performance cannot be considered as a matter of right in either party. It does not proceed ex debito justifies, but is a matter of sound and reasonable discretion, which governs itself by general rules and prin
As Mr. Sugden says: “ A party who seeks specific performance must show himself ready, desirous, prompt, and eager.” Sug., 279. If A. J. Ford, Jr., was not bound to buy, was Euker bound to convey? Can there be a contract without mutual obligation? Can there be an agreement between two parties which binds one of them absolutely and the other only at his pleasure? 1 Mad. Ch. Pr., 423. Indeed, as equity is never bound to give this relief, so it never will unless the justice of the case, as drawn from all its facts, demands it. Whatever his merits originally, a plaintiff may disentitle himself to relief by an unreasonable and injurious delay in filing his bill. 3 Par. on Con., 416; Watson v. Reid, 1 Russ. & M., 236; Hedphy v. Hill, 2 Lim. & S., 29; St. John v. Benedict, 6 John. Ch. K.; Jones & Co. v. Roberts, 3 H. & M., 436; Vail v. Nelson, 4 Rand., 478; 2 Lom. Pig., pp. 72, 100; 2 Min. Inst., 808, 809; Garnett v. Macon, 6 Call, 333, 334; Richardson v. Baker, 5 Call, 514; Cringan v. Nicolson, 1 H. & M., 429; Alley v. Weschampe, 13 Ves., 225; Pigg v. Carter, 12 Leigh, 69; Anthony v. Leftwich, 3 Rand., 245; Bryan v. Loftus, 1 Rob., 12; Bowers v. Woodson, 6 Gratt., 78.
Decree affirmed.