4 Port. 297 | Ala. | 1837
— 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
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 In
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
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
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
In the case of Rowton vs Rowland
In the case of Parkhurst vs Van Courtlandt.
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.”
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 how
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
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.
•The case of Alley vs Deschamps,
In the cases of Pinche vs Curtis
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.
• In the case of Benedict vs Lynch,
In the case of Doloret vs Rothschild
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:
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.
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.
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,
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;
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.
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
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’
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6Har.& J.288;also 4Eng.con
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1 Johns. Cb.R.273; 2Scho-5¡' Lef 513*
11 Johns 220.