Ryno v. DarbyRyno v. Darby
The bill is for the specific performance of an agreement to sell lands, which was in part performed. The answer admits thе parol agreement as alleged, and the acts of part performance or some of them; but sets up that the сomplainant did not fully perform the agreement on his part аs to payments, and that a new agreement was made between them for the conveyance of the same land at thе same price,
In the proof it appears that the original parol agreement was made on Sunday. The complainant in his testimony denies it; but the defendant and his son, John L. Darby, who was present at the making of it, both swear that it was on Sunday, and they are confirmed to some extent by Michael S. Torry, a witness of the complainant, who saw Ryno and the two Darbys on Sunday talking together at the place whore the Darbys say the bargain was made, and the complainant testifies that he only had one сonversation about the bargain with the defendant. John L. Darby statеs that he recollects it was on Sunday, and that his mother had gone to church, from a remark she made on coming home from church and being told of the sale, reproving them for making a bargаin on Sunday. I am convinced from the evidence that the bargain was made on Sunday. If it was it is void, and no subsequent recognition of it, short of a new bargain, can give it validity. This was so decided upon сonsideration by the Supreme Court of this state, in the case оf Reeves v. Butcher, 2 Vroom 224, in which it was held that subsequent payments on a note made on Sunday, were not sufficient to ratify or give validity to the note.
The stating аt the time of the bargain to a scrivener, that he might reduce it to writing for the purpose of being signed was not the making of a new bargain.
But the original bargain is alleged by the defendant in his answer to have been waived, and a new bargain substituted for it by a parol аgreement between the parties, made March 30th, 1868. The answеr can be no proof of such new agreement. The complainant, in his testimony, denies it; but here again the defendant and his son, John L. Darby, both testify that there was such a new bargain made, and their testimony is in a measure supported as to the fact that
But the defendant, in his answer, admits the second or substituted contract to convey for cash, upon an undertaking to remove the buildings in two years from April 1st, 1868. The complainant is entitled to have a decree for the specific performance of that contract, if he chooses to perform it on his part, and he can have such relief in this suit. Wallace v. Brown, 2 Stockt. 308.