#### Josiah Turner and Thomas D. Watts, *v.*The Cape-Fear Navigation Company *et al.*

The Cape-Fear Navigation Company having laid out a town and sold the lots under an impression that they would open the navigation to it, and it turning out that the funds of the company would not admit of it, whereby the lots were rendered worthless; but the company having made no fraudulent concealment or representation of their means, they and the vendors being under an honest mistake: It was held, that the latter could not be relieved.

The bill recited.the several acts of Assembly incorporating the Cape-Fear Navigation Company, and stated that at their passage as a good natural navigation existed from Fayetteville to the ocean, it ivas the intention of the legislature, that the contemplated improvements should be made above that town, so as to enable the counties west of it, to carry their produce to market by water; that the Deep and Haw River Navigation Company had, before the incorporation of the defendants, purchased a large tract of land at the confluence of those two rivers, and laid out a portion thereof as a town, calling it Haywood,- that by the act incorporating the defendants, the property of the Deep and Haw River Navigation Companies vested in them, and they became owners of that land *;*that in accordance with the intention of the legislature, the defendants having a capital *237of §>150.000, in the years 1816, 1817 and 1818, avowed tlieir determination to improve the navigation of the river up to Haywood ; that thereby, a general expectation was created, that Haywood would become a flourishing market town, which was increased by the defendants’ advertising notices of their intended improvements, and pretending to make contracts for digging canals and erecting locks ; that from these causes lots in Haywood greatly increased in value, which value was enhanced to the utmost by the officers of the defendants; that in July, 1818, the defendants advertised in the public papers a sale of lots in Haywood, to take place in September following; that in the advertisement, the defendants caused it to be stated, that the lot near the centre of the state, and convenient tofctl1 esi part of the country raising the great sta bacco and wheatand further to impress uní lie mind, thattho proposed navigation would s> cd, and thereby to enhance the value of their set forth in their advertisement, “that the comj pectcd in less than two years to have a commodious vigation to this town, (Haywood,) for boats carrying fifty hogsheads of tobaccoand the public were assured, that no exertions should be wanting on the part of the defendants, to complete that object. That the lots were sold at auction under the direction of the president of the company, and that during the sale, the auctioneer in his hearing repeatedly declared, that lie was authorised to say that the improvements advertised, would be completed within two years, as funds fully adequate thereto, had been subscribed, and contracts therefor made.— The plaintiffs then alleged, that they, in common with many others, were misled by these representations, and purchased two half acre lots, for which they bid g>1420; that they executed their bonds for the purchase-money, and received a deed of bargain and sale. ÍÍ was then stated, that the defendants had wholly neglected to make any improvements in the navigation above Fayetteville, but were disbursing tlieir funds below that town, and were making dividends to the stockholders from the *238monies received by a sale of the Haywood lots, which were thus rendered worthless, except for the purpose of agriculture, and for that, were not worth more than any °^iCi’ *ant^ ^,c same quality; that the plaintiffs had avowed their determination to resist the payment of their bonds, but that the corporation had assigned them to the other defendants, who had notice of their intended defence, and had put them in suit. The bill concluded with a tender by the plaintiffs of a re-conveyance of the two lots, and a prayer that the contract might be rescinded, and for a perpetual injunction against a judgment obtained on the bonds.

The corporation in their answer insisted, that it was their duty and interest to improve the navigation below the town of Fayetteville, as well as that,above it; that with a view to this, they had purchased a number of ne-groes, who were placed upon the river below that place, to remove obstructions; that this course was dictated *by*their experience of the fact, that white laborers could not be employed to work in the low country, and it was universally known at the sale of the Maywood lots, that this was a permanent investment for the improvement of the lower part of the river; that as to the navigation between Fayetteville and Haywood, the improvement of it required more skill than that below the former place, because in the latter, sand bars alone were to be removed, whereas, in the former, canals were to be dug and locks built; thatbeing entirely ignorant of the science of civil engineering, they had, just before the sale in September, 1818, after due caution, and as they thought, upon sufficient information, madeacontract with one-Sircnd for the contemplated improvements between Fayetteville and Haywood; that at the sale, it was distinctly announced by *Stroud,*who attended it, that there was no time specified in his contract, within which *it*was to be completed ; and that all its stipulations, together with the plans, &c. were fully disclosed ; that the officers of the corporation honestly thought that they should be able to perfect the navigation, and participating iu the common delusion, and thinking that the lots at Haywood were *239selling too low, they had stopped the sale. They admitted, that the works commenced by *Stroud,*had failed, and finding the resources of the company much diminished, they liad, in order to effect the greatest possible amount of improvement, confined themselves to working upon the river below Fayetteville j but tiiat they intended to re-commencc above with more experience.

The answer of the other defendants, it is not necessary to state, farther than that they claimed under an assignment of the bonds by the corporation to them in payment of a debt.

Replications were put in to the answers, and proofs taken | the contract with *Stroud*was filed as an exhibit. It is not necessary to give a statement of the depositions, as they supported the answer on all material points.

*Badger,*for the plaintiffs.

*Gaston,*for the Navigation Company.

*ÍVinston,*for the other defendants.

Banter Judge,

after stating the facts, proceeded: The contract being executed, nothing is left for a court of Equity to do in respect to it, provided the transaction is a fair one. If there was ao fraud in making the sale and obtaining the bond, parol evidence is inadmissible for the purpose of annexing a condition to the written deed, which appears on its face to be absolute anti unconditional. Any declarations made at the time of the sale by the vendor, relative to the property, if not incorporated in the written contract of sale, are presumed to have been abandoned by the parties, as forming no part of it. They are not to be proved by parol, to explain the contract, or in any way to affect it, except when it is alleged that,they were false, and so, known to be by the vendor at the time, and were spoken with a view to commit a fraud on the vendee. In looking into all the evidence in this case, I am unable to discover any declaration made by the agents of the company, which were made with a fraudulent intent. -The declaration made by the auc-tioner at the sale in the hearing of the president of the company, and by the order of one of the directors, that *240the üjyer would be made navigable by the company in a reasonable time thereafter, appear to me not *to have*/ A x been made witii any fraudulent intent to enhance the pr¡ce 0f the lots. The large capital they had got subscribed, the contracts they had made with workmen, to execute the work, the stop put to the sales of the lots by the company’s agents, the day the plaintiffs purchased, the large sums expended by the company in their endeavors to complete the navigation and their continued efforts to effectuate the object to the present time, all these circumstances connected with the facts, that the plaintiffs liad a full knowledge of the capital subscribed, the contracts entered into by *Stroud*and others to do the work, the plans and nature of the work to be done, all taken together repel the presumption that the agents of the company intended to commit a fraud at the time the sale of the lots was made. The company’s agents were honestly mistaken in the declarations and in their expectations. It is a hard case for the plaintiffs, but that is no reason for this court to interfere, much less to rescind this executed contract. I think this case is within the principles of the two cases cited by the council for the defendant. The first is the case of *the city of London*v. *Richmond,*(2 *Vern.*421.) The city of London articled with a man by the name of Mdersen, to lay a new leaden pipe of five inches, diameter for the carrying water to *Cheapside*and *Slocks*mar*ket}*which it was affirmed, would carry twenty tons of water each hour; whilst this was doing, the city by a committee, treated with *Haughton*to grant him a lease of the water, reserving a portion of the same water for the prisons and certain conduits, and he agreed to pay a rent of £750 per annum, for fifteen years. It so fell out, that the pipe would not discharge but six tons an *hour;*and instead of being a beneficial concern, it would not produce above ¿6300 per annum. *Ilanghton*assigned the lease, became insolvent, and the rent was in arrear; the bill was filed for payment, and to carry the covenants in the lease into effect, . The chancellor said, as a beneficial bargain will be decreed in equity, so *241if it happen to be a loosing bargain, for the same reason it ought to be decreed.

In the case of *Legge*v. *Croker,*(1 *Ball. and*Beatty, 506.) the court determined that alease deliberately executed, could not be set aside on account of an unfounded, though justifiable assertion of the lessor pending the treaty; there being no wilful misrepresentation, nor on the grounds of mistake, from an omission of a general warranty in the lease, such not constituting a part of the agreement. In this case as the company have been honestly mistaken, and as there is no covenants inserted in the deed, or left out by mistake, and, as there is no fraud, although it may be a hard bargain, we have no right to relieve against it. A failure in a speculation forms no ground to resist a specific performance. (Ad*ams*v. *Weave,*1 *Bro. Ch. Rep. 569. Mortimer*v. *Cupper, Ib.*156.) I think the injunction should be dissolved.

Henderson, Chief-Justice

—Were this an application by the company, to have this contract executed, I think that as it has turned out so contrary to the expectations of all parties, if we are to believe what is said on both sides, that this court would not interfere, but leave the parties to their remedy at law. But the application comes from the other party to set aside what has been done. The court is not invoked to do something upon the contract which the law cannot do, to give the plaintiffs aid beyond their rights at law — but to take from the adverse party rights, to which at law, they are entitled. A disappointment in their reasonable expectations, a hard or a bad bargain, do not afford sufficient grounds for the court to undo what has been done, although it would probably be a good reason for refusing to do more than what the parties had done, on the ground, that it was only agreed to be done, or more than the law would do for them. To rescind a contract in this court, or to set aside an executed contract, there must be something like an actual fraud, which would give an action at law, or a vital mistake. Upon a capful *242examination, I can perceive nothing like a *fraud;*it was a mistake all round, as well among the purchasers as the sellers. The improvement was believed to be practicable with such means as the company might rightfully use in justice to' the stockholders. It could not be understood that the river was at all events to he made navigable for boats carrying fifty hogshead of tobacco, but that the means the company were then using, and which it was their interest, as a company, to use, would produce that effect. There was nothing like a condition that this should bo effected, or that the company would use all their means to effect it, disregarding their other duties or interests as a company, and nothing like a fraudulent concealment of their intention, or the difficulties known to them, but unknown to the bidders. I think all was fair and *bona Jide.*AI-though I would not hold the vendee to be bound if the representations contained in the printed or written advertisement were false, or if there was any thing like a fraudulent concealment or misrepresentation, it is quite evident that what was said at the sale was. nothing but an amplification — a picture of what was contained in the advertisement in more glowing colours, and nothing more was intended, or understood to be intended, than what was in substance contained in the advertisement, and should any expression have gone beyond it, it was cleai’ly understood to. be only matter of opinion, and had only the weight of an opinion, not of an allegation.

As to using the money arising from these sales for the purposes of opening the river elsewhere, or even in making dividends upon the stock, it is the undoubted right of the company to use it as they please, for I consider them to have contracted no obligation, but what was contained in their advertisement, and imposed by their charter. Therefore although it may be a very hard bargain as it has turned out, I can see no ground of relief, without subverting the very principles upon which this court acts. There has been no violation of any warranty or contract, no fraudulent representation or concealment — no violation of the terms of *sale*— m *243violation of their charter, — nothing but what now appears to be a delusion in which all, both vendors and vendees participated.

Per Curiam. — Bin dismissed.*

*

 Judge Rupp in having been of counsel for the plaintiffs, took no part in*the decision..