| Pa. | Jul 15, 1835
The opinion of the Court was delivered by
—A conditional verdict is bad at common law ; and it is sustainable here but as an instrument of equity. For what equitable purpose was it employed ? Unquestionably to enforce a specific execution of the contract, not to give damages for the breach of it. As a means of enforcing a common law object, it would be incurably vicious : it would be absurd. Now I take it to be indisputable, that a jury may not enforce a specific execution by verdict where a chancellor would not enforce it by decree. Would, therefore, a chancellor execute the contract set out in this declaration? A plaintiff must lay such a contract as will support his action, and he must, in a case like the present, lay such a contract as a chancellor would execute. Such is the principle of Huber v. Burke, 11 Serg. & Rawle 238, in which it was determined that a vendor who goes for specific performance, must indicate it by his declaration, instead of laying a cause of action that would otherwise entitle him but to damages. That was the case of a vendor who had recovered a verdict for the purchase money ; but the principle is equally pertinent to the case of a vendee who goes for the land. Nor is a defect in this respect, cured by a verdict which helps, not the want of a cause of action, but a defect in the manner of stating it. Now here there was no equitable cause of action set forth, for a respondent might safely demur to a bill containing the substance of this declaration. It contains, indeed, the substance of a legal cause of action ; but, for purposes of equitable relief, (hat is no cause of action at all. The contract is neither laid to be in writing nor as having been partly executed ; and it is therefore to be taken as an unexecuted verbal bargain, to an action on which, for any thing but damages, the statute of frauds presents a positive bar. The policy of requiring the title to relief to be specially set out, is strikingly evinced by the present case, in which, though it is not. pretended that the contract was in writing or partly executed, it is only by means of this rule that the court, in the last resort, and the conservative organ of the law, can prevent a positive statute from being manifestly violated ; and it can produce neither injustice nor inconvenience to narrow the plaintiff’s recourse to a specific ground, as a count for equitable relief may be joined with a count for damages at law. This disposes of all that it is, at present, necessary to decide; for though the cause is to go back to enable the plaintiff to proceed for damages, yet the objections to the declaration on common law
Judgment reversed, and a venire de novo awarded.