(1) Equity. Amendment of Bill. Contracts. Where a proposed amendment to a bill in equity is based upon the want of capacity of a person to execute a contract by which the complainants are affected, and fails to aver a lack of knowledge on their part of the incapacity at the time of the passage of certain votes by the complainants amounting to a ratification of the contract, the motion to amend will be denied.
(2) Equity. Amendment of Bill. Amendments which would make a new bill, calling for new testimony and a new trial of a case already decided on its merits, will not be allowed.
(3) Contracts. Liquidated Damages. A contract for sale of land provided that the grantors should, upon the execution of the deed, receive from the grantees the sum of ten thousand dollars, which sum, upon the completion of the purchase, should be considered as a part of the purchase price of one hundred and ten thousand dollars, and, in the event that the grantees should fail to carry out their part of the agreement, should be retained by the grantors as liquidated damages. The grantors gave their deed, which was accepted and recorded by the grantees, who entered into possession of the land. The mode of payment of the balance, subsequently agreed upon by the parties, proved to be impossible without fault on their part. On a motion to amend a bill brought by the grantees to rescind the agreement and to have a reconveyance of the property to the grantors, so as to have the sum of ten thousand dollars held by the grantors declared to be held by them as liquidated damages: — Held, that, the grantees having taken the land, the clause relating to liquidated damages did not apply.
PER CURIAM.
The complainants' motion to amend their bill is denied. Not only do they fail to aver a lack of knowledge on their part of the incompetency of Orlando R. Smith at the time of the several votes amounting to a ratification of the contract, subsequent to November 9, 1898, but most of the proposed amendments, if made, would not, in fact, be amendments to the present bill, but would make it a new bill, calling for new testimony and a new trial of the case already decided. It is too late to introduce amendments of such a character.
The proposed amendment relating to the agreement that the $10,000 paid by the complainants to the respondents should be retained by the latter as liquidated damages for the breach of the agreement by the complainants is disposed of by the decision that the contract of sale had been fully executed by the respondents. It was a contract for the sale of land. The respondents gave their deed, which was accepted by the complainants and recorded. They also entered into possession of the land and have since held it, subject only to the appointment of the temporary receiver in this case. The only breach of the agreement has been in the mode of payment subsequently agreed on by the parties, which has been found to be impossible without fault on their part. If the complainants had refused to take the deed, the clause relating to liquidated damages would have applied. But, they having taken the land, it has no application to the present state of affairs. If it had, it would lead to the absurd result of holding that their refusal to pay $100,000 for the land was a breach of the agreement, for which $10,000 is the amount of liquidated damages. The court has no power to compel the respondents on this bill to take back land which they have conveyed and which the complainants have accepted.