Where a contract for the sale of land, by the acre, to be measured, provided, that the deed should be given on the 1st of September, and sooner if the purchaser required it, and that when delivered, one half the purchase money before stipulated to be paid in the fall, should be paid: Held, on a bill for specific performance by the purchaser, who claimed the purchase by assignment from an agent, that by going away on a visit to Saratoga on the 1st of September, without leaving any word with the seller, between whom and himself there had been no personal communication as to the purchase, and by not returning and offering to receive the deed and pay half the purchase-money until the 14th of September, the purchaser had been guilty of such neglect as to bar his right to the interposition of the court; the precise time named in a contract of sale for performance by the purchaser, being as material in equity as at law, unless performance at that time be prevented by accident or mistake. A servant of the purchaser testified, in the above case, that on the 1st day of September the seller came to the purchaser's house, in Newport, and asked to know where he was, and to whom he should execute the deed; and upon being informed that he was in Providence, said, "it would do when he came back." when he was told to ring at the door, where he would get more information. A sister-in-law of the purchaser testified, that upon the seller's putting to her, when he inquired at the door, similar questions, she replied, that the purchaser was in Providence, and was going to Saratoga, to be absent for a week or ten days, and offered to send him word, which the purchaser declined, saying, "It was of no consequence; any other time would answer;" or words of that meaning. The seller denied, in his answer, that he used these words, but admitted that the sister-in-law of the purchaser asked him, upon his inquiry as above, at the door, if the purchaser's wife, who was not up, should be spoken to, and that he replied, "No; I do not wish to disturb her;" and that he said, as he left the door, "I can see him when he gets back." Held, that this was no waiver of the time of performance in the contract, because, not having been communicated to the purchaser so that he could have acted upon it, it did not estop the seller from objecting to the neglect to perform on the day named in the contract; the seller denying in his answer, that by the language used by him, be intended to waive the time of performance, and stating, in substance, that he recollected precisely what he did say, because he designed at the time to take advantage of the purchaser's non-performance on that day. The memorandum, signed by the defendant in the above case, contained no other description of the land contracted to be sold, than, "a certain lot of land containing about eleven acres, to be measured, for nine hundred dollars per acre, I to have the present crop;" quaere, whether sufficient within the Statute of Frauds, though aided by clear proof, by parol, of the subject to which the treaty related?
STAPLES, C.J.
The prayer of this bill is for a decree for the specific performance of a contract for the sale of lands, in the city of Newport. The bill charges, that on the 28th day of May, 1852, the defendant was the owner of a lot of land situate in the city of Newport, next north of the complainant's house; that he employed one Charles T. Hazard, as his agent, to purchase the same; that said Hazard did purchase the same on said 28th of May, and took from the defendant the following written memorandum of the contract of sale: —
"This is to certify, that I have sold to Charles T. Hazard this twenty-eighth day of May, 1852, a certain lot of land, containing about eleven acres, to be measured, for nine hundred dollars per acre; I to have the present crop; one half of the purchase-money to be paid in fall of 1852, the balance to be paid on the twenty-fifth day of March, 1853; the deed to be given on the first day of September, and sooner if I should require it, that it, the said Charles T. Hazard, that is to say, one half the purchase-money to be paid at the time of the delivery of the deed.
(Signed) CHARLES T. HAZARD,
May 28, 1852. GEORGE A. ARMSTRONG;"
that said Hazard, afterward, on the 9th of June, executed the assignment of said contract to the complainant on the back of said memorandum, as follows: —
"Newport, 9th June, 1852. The within-named purchase having been made for account of Robert H. Ives of Providence, I hereby assign to him the contract.
(Signed) CHARLES T. HAZARD;" which assignment was subsequently made known to the defendant, who was satisfied with the same; that the complainant was absent from Newport on the 1st day of September, and that subsequently, on the 14th of September, he gave the defendant notice that he was ready to complete the purchase, and that the defendant then declined to perform it. The bill further charged, that the defendant waived the performance of the contract on the 1st day of September, and that he is now, and always has been ready to perform his part of the same.
The answer of the defendant admits the execution of the memorandum to Charles T. Hazard on the day it bears date, and insists, that he dealt with Hazard, not as agent, but in his own name and right, — that Hazard told him, after the execution of the assignment on the back of said memorandum, that the same was made, but not that it was in writing; that the contract with Hazard was not assignable, — that the memorandum is indefinite, and does not refer to any specific piece of land, and not certainly to the land claimed and described in the complainant's bill. The answer avers, that on the 31st day of August, the defendant went to complainant's house, in Newport, and again on the morning of September 1st, and the complainant being absent at both times, he told the person he saw there, that he came to see to whom he should make his deed, whether to the complainant alone, or to the complainant and his brother, and was told that the complainant had gone to Saratoga, — that land in Newport had risen in value between the 28th of May and the 1st of September. The answer denies that the defendant ever waived the performance of the contract on the 1st day of September, and avers, that complainant never told or intimated to him that he was interested in the contract or memorandum made by the defendant with said Hazard, or exchanged a word with him on the subject. The answer admits that the defendant received notice from the complainant, by letter dated September 14th, that he was then ready to complete the said purchase, and that he, the defendant, then and now declines to do the same; the time limited in the memorandum having expired.
The complainant filed the general replication, and the cause came on to be heard on the exhibits and proofs filed and taken in the cause.
At the trial, the defendant resisted the claim of the complainant on several grounds. Among others, that the proofs did not establish the agency of Hazard in making the supposed contract, — that the contract itself was void from the uncertainty of the description of the land referred to in it, — that there was not a mutuality of contract and remedy, so that the defendant could have compelled the complainant to a specific performance of the contract set up in the bill, and that the complainant had, by his gross negligence, discharged the defendant from the contract, if any were made.
We do not deem it necessary to go into a consideration of any, except the last point made by the defendant. Taking for granted that there is no ground of defence in any of them, which we do only in view of the substantial defence contained in the last, the complainant is not entitled to the decree prayed for in the bill.
The contract between the defendant and Hazard was executed on the 28th of May, and on the 9th day of June, following, was transferred to the complainant. From the last date up to the 14th of September, not a word passed between the complainant and defendant, nor was any step taken by the complainant in relation to it. By the terms of the contract, one half of the purchase-money was to be paid on the execution of the deed, and that was to be on any day prior to and including the 1st day of September, at the option of the complainant. The defendant was to retain possession and to remove his crops, whether the deed was claimed by the complainant on the 1st day of September or before. No laches can be imputed to the complainant until after the 1st day of September. As he could not have actual possession at that time, there was no reason why he should not make interest on one half of the purchase-money up to the 1st of September, though it seems strange that he had not proposed some arrangement for ascertaining the exact quantity of the land before that time, especially, as by the proofs in the cause land had risen in value, and this lot, on the 1st September, was worth $1,000 per acre.
The defendant applied for the complainant at his house, in Newport, on the 31st of August and on the day following, and in season to have completed the measuring of the land and the making of the deed, within the time limited in the contract. The complainant left Newport early on the morning of September 1st, leaving no agent to complete this contract, and no excuse or word for the defendant.
At law, the complainant is clearly without remedy. The parties having fixed a time for the performance of the contract, and the complainant by his own unexplained neglect having suffered that time to pass without being in readiness to perform his part of it, could recover no damages at law for breach of it by defendant.
Ought his neglect to avail him when he sues in equity for specific performance? We apprehend the rule is the same in equity as in law in case of gross negligence by the plaintiff. When he asks exact justice between him and the defendant by a decree for specific performance, he is bound to allege, and prove, that he himself was at all times ready to do all the terms of the contract sought to be enforced, required of him. Unless he shows that he attempted to perform it in time, and was prevented by mistake or accident, he ought not to be permitted to require of the other party an exact performance of his contract. It is true, mere time is not regarded in law or equity as material, unless the parties make it so; but, in the meaning of these terms, they did make it material, when they agreed to a specified time for its execution. What other object could they have had in fixing upon any given time? To change it without cause, and to say it is immaterial and of no account, is, in fact, to substitute a term in the contract against the express agreement of the parties.
We do not understand this to be the rule in chancery, at least in modern times, nor the ground of its action. But whenever chancery finds a party ready and willing to perform his contract according to the letter of it, in point of time, as well as in all other respects, and that by reason of accident, or some unforeseen cause, he has not performed within the time, and that the breach of his part of the contract worked no injury to the other which cannot be remedied or compensated for, it has enforced the contract. Such seems to us the rule of action to be deduced from the almost innumerable cases reported on this point. The rule was much more lax in early times, and more so always in England than in America. It is now nearly identical with the rule at law. There seems no good reason why there should be any difference; and we do not in fact find any, where the conduct of the party is marked with gross neglect, as in this case.
But it is said that the defendant by his acts and words on the 31st of August and 1st of September waived the performance of the contract on the last named day, and that he is estopped from setting up the neglect of the complainant as a bar to his recovery. It is a sufficient reply to this suggestion, that the complainant was not influenced in his conduct by anything then said or done by the defendant. That he could waive the performance on that day is, on all hands, admitted. It is charged in the bill that he did so, which charge is expressly denied in the answer, and the denial corroborated by other facts in the case.
STAPLES, C.J.
APPENDIX I. RULES OF COURT. AT the January session of the General Assembly, 1859, the following act was passed, giving to either party a jury trial as to questions of fact in causes in equity, and repealing rule 29th of the Rules of Practice at Law. CHAPTER 304. AN ACT IN ADDITION TO CHAPTER 164 OF THE REVISED STATUTES, "OF THE SUPREME COURT." It is enacted by the General Assembly as follows: SECTION 1. Questions of fact, raised by the pleadings in any cause in equity for relief in which the complainant must proceed by bill, shall, upon the demand of any party thereto, be tried by a jury in the supreme court, upon issues adapted to such questions, to be framed by said court: Provided, said demands be made in writing and lodged with the clerk of the court in the county in which such bill may be pending, within ten days after the general replication shall be filed. SEC. 2. In case such demand be made in the manner and within the time aforesaid, either party may call witnesses or use depositions, as in cases at common law; and the verdict of the jury upon the questions of fact involved in the issues submitted to them shall be conclusive thereupon, unless set aside by said court for cause, and a new trial granted upon such, or amended, or other issues, to be framed by said court. SEC. 3. The two preceding sections shall not be construed to prevent said court from framing, in its discretion, issues of fact in equity causes, to be tried by a jury according to the course and subject to the rules of the chancery, in cases where no demand for a jury has been made, at the time and in the manner in said sections provided. SEC. 4. No rule which has been, or hereafter may be adopted by the supreme court, to regulate the practice in actions and proceedings at law, shall require any party defendant therein to make affidavit other than to the effect that he believes he has a good and valid defence, and intends to bring his case to trial, in order to entitle such party to a trial by jury. SEC. 5. This act shall take effect from and after its passage. APPENDIX II. OPINION