#### Washabaugh *versus*Stauffer *et al.*

1. Plaintiff entered into articles for the purchase of land from defendant, and paid the hand-money. Within two weeks he notified defendant, *“*I can’t take that land. I might as well throw it up now as after awhile. I can’t pay for it.” Defendant said he would hold him to his contract. Plaintiff paid no part of the purchase-money except the hand-money. Afterwards defendant, without plaintiff’s consent, but with his knowledge, sold part of the land, which was subsequently improved. About two years afterwards plaintiff tendered the purchase-money and brought ejectment to enforce the contract, disclaiming those parts which had been sold. *Held,*that he could not recover.

2. Specific performance is not of right but of grace, and will be awarded only to a purchaser who is eager, ready, and prompt to perform.

November 16th, 1874.

Before Agnew, O. J., Sharswood, Mercur, and Gordon, JJ.

Error to the Court of Common Pleas of *Fayette*County, of October and November Term, 1874, No. 62.

This was an action of ejectment brought May 23d, 1870, by George Washabaugh against John Griunell and Isaac Grinnell'. On the 23d of January, John T. Stauffer was added to the record as landlord.

The action was founded on the following agreement, dated September 1st, 1868, between John T. Stauffer, landlord, defendant, and George Washabaugh, plaintiff.

“ . . . Said Stauffer sells to said Washabaugh, a certain piece or parcel of land, etc., being part of *the*same now occupied by said Stauffer, situate, etc., and bounded and described as follows: Commencing at the northwest corner of Abraham Newcomer’s lot, thence, etc., to place of beginning, containing about 60 acres, more or less, possession to be given November 1st, 1868. In consideration of which the said Washabaugh. binds himself, etc., to pay said Stauffer the sum of one hundred and sixty dollars per acre, as follows : Five thousand dollars on the 1st of March, 1869, and the balance .in two equal annual payments, from the 1st of *498November, 1868, with interest on the whole sum from November 1st, 1868, deed to be made when all the purchase-money is paid, and the interest on the whole sum to be paid on the date of each payment. Said Stauffer reserves,” etc. A receipt of Stauffer, dated September 1st, for $50, was entered on the agreement.

After the contract, and previously to the bringing of this suit, which was brought to enforce the execution of the contract, Stauffer had sold coal under the surface, and lots to the lion. John K. Ewing and others.

On the 30th of January, 1874, on the petition of Judge Ewing, he was admitted as defendant to the part of land sold to him.

On the same day, the trial commenced before Hon. Jambs P. Sterrett, P. J. of the 5th judicial district.

The plaintiff gave the article in evidence, and evidence that he had tendered, May 11th, 1870, $8500, the amount of the purchase-money, and that Stauffer said he would not take the money.

The plaintiff then rested.

Eor the defendants:

*A. Newcomer*testified: That in October, 1868, plaintiff told witness that he was not going to have anything to do with it (the land in the article), for there was no chance for him to make anything out of it for a year. He would rather lose the $50 he had paid than move; that his father thought it was too dear.

*Stauffer*testified: “ I owned the land and lived on it in 1868. Removed from it in the fall of that year, in November, I think. Washabaugh did not come then, or at any time, to take possession; he did not offer to pay me $5000, or any money about 1st of March, 1869; never offered to pay me any money until time of tender spoken of; never asked for possession of the land; from date of article to present time he lived not over a quarter of a mile from the land; just after he bought he moved quite near the land, where he could see all over it; I think he moved close, the fall he bought the land, or the next fall, I don’t know which; he bought lot and built house on it; this is quite close to the land in controversy, two lots from it; still lives there. After making this article, I received a letter from Washabaugh, a couple pf weeks or so after we articled; think it was before the 1st of November of that year (letter proved to be lost); the letter read about this way: ‘ Mr. Stauffer, I won’t take that land. It is too dear; I may as well throw it up now as at any other time.’ I think he said also, ‘ I can’t pay for it;’ he may not have said it was too dear.....I saw him, I think, *499the same week; shortly afterwards, anyhow. I had some conversation about it when we met. I said, ‘ George, you ought not to have done that, there was a bargain in it.’ Pie said his father was very much opposed to it, and thought he had better throw it up. . . . We talked about it at different times ; there were other parties wanted to buy the land, and they were walking over it; Laughlins came there' to buy it; this was along in the fall of 1869; I was then living in Mount Pleasant. We took (Dr. Lindley and I) dinner at Washabaugh’s; the Doctor and I walked over the place with Laughlins; Washabaugh was present, I think, when we took dinner at his house; we talked about selling ; I cannot say whether anything was said at that particular time in his presence. Washabaugh and I talked at different times after I received the letter from him; he asked me how I was getting along about selling the coal; I did sell the coal under part of the farm to Judge Ewing. It was before this suit was brought; a short time before. Sold him some surface also. It was never surveyed. Do not know how much. There are coke ovens built on the parti sold .to Judge Ewing; the coal has been opened; they are operating, making coke there; I have sold.part of the surface; I sold a lot close to Washabaugh’s house, and built a house on it before; I built a house on the lot and sold house and lot; this was before suit was brought, and long before I sold to Judge Ewing; Washabaugh was present at the sale ; it was a public sale; sale of the house and lot; it was not sold on the day that it was offered; it was not knocked off' that day; it was sold within a few days. Abraham G-rinnell, I think, was the man that bought it. Washabaugh bid different times at that sale ; I think the sale was in 1869. It was a year before the suit was brought, as near as I can tell. The lot I sold to Til-man and Fleming was part of the property embraced in the article; I think this sale "was before the suit was brought.”

Pie said he had sold many lots, naming the purchasers, after suit was brought.

“ The lots are different sizes, some from a quarter to half an acre. ... I sold the mansion house and barn, containing 5 or 6 acres. . . . The mansion lot was sold about a year ago. Washabaugh never came to me to claim this land before he brought the suit. ...

" The lots above mentioned have not all been paid for; part of Judge Ewing’s purchase was paid for. ... I still own 40 acres of this land. The lots I have enumerated, the mansion house, etc., embrace all that have been sold ; cannot tell how much coal I have yet; have sold no coal except to Judge Ewing.”

*500A number of witnesses testified that they had seen the letter from plaintiff to Stauffer, and that the contents were substantially as Stauffer stated them.

A witness testified that plaintiff had said to witness he had written to Stauffer throwing up the farm; that he believed Stauffer was not going to hold him to it, and appeared much relieved. Another witness : that he was conversing with plaintiff about throwing up the contract and the advance of land. Witness said to him: “ You would have made a nice thing if you had kept the Stauffer farmplaintiff replied, “ Yes, I would, but I did not see it then.”

To one witness plaintiff said that he had thrown up the farm because Stauffer could not make a deed for it.

There were a great many witnesses who testified that plaintiff said he had thrown up his contract; some within two weeks of the execution of the articles. Their statements were generally of the same purport as those given.

Some of them testified that after the contract, the plaintiff had bid for a lot, part of the land described in it, and had afterwards endeavored to purchase the lot at private sale from Stauffer; that he knew of sales made by Stauffer, and of improvements on the land.

The defendants gave evidence of the sale of part of the land, and of the coal to Judge Ewing and others ; of the payment of a large part of the purchase-money; also of the erection of coke ovens on his purchase by Judge Ewing.

They then rested.

In rebuttal, a witness testified for plaintiff that Stauffer, after he was informed by plaintiff that he would throw up the property, said that he thought he could compel him to take it; that he would hold him if he could; this was within a month after the execution of the articles. Another witness said that Stauffer-told him he would make plaintiff take the land.

Another, that he heard Stauffer say to plaintiff that he would hold him to his contract, and if he could make a dollar oft' him he would do it.

There was other evidence that Stauffer had expressed his determination to hold the plaintiff to his contract.

The plaintiff testified also that the contract had never been rescinded.

At the close of the evidence the following disclaimer was filed.

“ The plaintiff disclaims any right to recover in this action any of the land or coal sold to lion. J. K. Ewing, by article of agreement, dated May 6th, 1870, and recorded May 9th, 1870; also, as to the house and lot sold to Martha M. Elem*501ing, by deed dated March 3d, 1870 ; also, as to the house and lot sold to Abraham Grinnell, January 31st, 1871.

“ After closing the testimony on both sides, plaintiff presents arid asks leave to file the foregoing disclaimer, and it is ordered that the same be filed and entered at large upon the docket.

“By the Court.”

The following ai’e plaintiff/s points :

1st. The written contract in this case could only be rescinded by a matter of a nature as high as the written agreement itself, and that no parol matter would be sufficient.

2d. The fact that the plaintiff was willing ’to rescind the written agreement can in no way interfere with his right now to have a specific performance, unless it is conclusively shown that there was a mutual agreement between the parties to rescind it.

3d. The refusal by Stauffer to accept the written proposal of Washabaugh to dissolve the contract, relieved Washabaugh from any consequences that might result from his said proposition.

4th. Nothing but a mutual agreement to destroy the article of agreement, or some unequivocal act of both parties in pursuance of it, could possibly effect a dissolution of this article of agreement.

5th. No acquiescence upon the part of the plaintiff will estop him unless the defendant has sustained some loss by such acquiescence which he has not shown in this case.

The Court answered:

“ We decline to instruct the jury as requested in the foregoing points, and on the contrary instruct you that under •the evidence in this case the plaintiff is not entitled to recover, and your verdict should be for the defendants.”

The verdict was for the defendants.

The plaintiff took a writ of error, and assigned the charge of the Court for error.

*A. S. Fuller*and *D. Iiaine,*for plaintiff in error.

Time is not the essence of a contract in equity, unless specially made so by the parties: Remington *v.*Irwin, 2 Harris, 143; Tiernan *v.*Roland, 3 Id., 429 ; Brashier *v.*Gratz, 6 Wheaton, 528 ; Hepburn *v.*Auld, 5 Cranch, 262. If a party intends to make time of essence it is his duty to notify the other party of the fact: Walker *v.*Jeffreys, 1 Hare, 341 ; King *v.*Wilson, 6 Beaven, 124 ; Adams Equity, p. 88.

The vendor under articles of agreement becomes a trustee for the vendee, and when a portion of the purchase-money *502is paid, the vendee has an equitable interest in the land, and when the vendor has sold a portion of the land the vendee is entitled to a credit for the amount received from such sale, and equity will compel a specific performance for such parts of the land as the vendor has not disposed of, or incapacitated himself to convey : 1 Hilliard on Vendors, 447 ; Gans *v.*Renshaw, 2 Barr, 37. An actual rescission by the party defrauded, notice of the rescission to the other party, and in general an offer to return the subject must appear so as to put the party in *statu*quo, Morrow *v.*Reese, 19 P. F. Smith, 373 ; Babcock’s *v.*Case, 11 Id., 427; Bowser *v.*Cravener, 6 Id., 132 ; McGlaughlin *v.*Shields, 2 Jones, 290; Patterson *v.*Wilson, 7 Harris, 383.

*G. 8. Boyle*and *A.*Howell, for defendants in error.

Decrees in equity for specific execution are not of right, but of grace: Weise’s Appeal, 22 P. F. Smith, 351; Miller *v.*Henlan, 1 Id., 265; Freetly *v.*Barnhart, Id., 281. Payment alone is not part performance: Brawdy *v.*Brawdy, 7 Barr, 157. It was the duty of the Court to give binding instructions: Peirsol *v.*Neill, 13 P. F. Smith, 420 ; Brady’s Appeal, 16 Id., 277.

The plaintiff had done nothing under his contract to carry it out. The letter was a rescission in writing; it was not necessary the acceptance of the rescission should be in writing: Ong *v.*Campbell, 6 Watts, 392; Boyce *v.*McCulloch, 3 W. & S., 429; Garver *v.*McNulty, 3 Wright, 485 ; Grove *v.*Donaldson, 3 Harris, 128; Dayton *v.*Newman, 7 Harris, 194 ; Raffensberger *v.*Cullison, 4 Casey, 426.

Judgment was entered in the Supreme Court, November 21st, 1874.

Per Curiam:

It is very .clear that the plaintiff in this case disclaimed his purchase, and followed up his disclaimer by conduct evincing his intention to adhere to it. True, at first the defendant refused to accept the rescission, but it is equally clear that he afterwards acquiesced in it, and finally acted upon it, by selling lots and the coal beneath the largest part of the land. In the meantime the plaintiff by his conduct led the defendant to believe that the contract was at an end. He paid no part of the purchase-money, and laid no claim to hold the bargain until after the defendant had sold the coal and the lots, and an evident change in the circumstances led him to think there was a bargain in the property that be had before not seen. A decree of specific performance is of grace not of right, and is awarded only to *503the purchaser who is eager, prompt, and ready to perform. The evidence shows clearly that the plaintiff instead *of*this had abandoned his bargain, and sought to enforce it only when he thought better of it.

Judgment affirmed.