#### Jacob F. Moorer *vs.*Jacob Kopmann.

*Specific Performance.*

A and B agreed as follows: A agreed to make title to B for a certain plantation, and to pay him $2,000, and B agreed to make title to A for certain lots in Charleston, and each bound himself, in case of his refusal or failure to comply, to pay to the other “$1,000, with all costs and charges, as damages sustained for non-compliance on his part.” A delivered possession of the plantation to B, and tendered him the $2,000 and interest. B retained possession of the plantation, and refused to comply with his part of the agreement. *Said,*that notwithstanding the agreement to pay $2,000 as damages, A was entitled to a. decree for specific performance of the agreement.

BEFORE WARDLAW, CH., AT CHARLESTON, FEBRUARY, 1859,

This case will be sufficiently understood from the circuit decree, and the copy of the agreement. The circuit decree-is as follows:

Wardláw, Ch. This is a bill, by the vendor, for the spe*-cific performance of defendant’s agreement to conclude at trade for the purchase of the plantation called the Mims-P tract.

On the fifteenth day of March, eighteen hundred ami fifty-eight, the parties entered into an agreement, under, seal, whereby Jacob F. Moorer, in consideration of a clear and unencumbered title to certain lots of land, and the buildings thereon, in the City of Charleston, on the west of King street, and north of Rodgers’ alley, containing sixty-four feet deep on King, and two hundred feet deep on the north side of Rodgers’ alley, to be made, duly executed and delivered to him, by Jacob Kopmann, covenanted and agreed to sell and convey to the said Jacob Kopmann, a tract of land known as the Mims’ tract, in St. James Goose Creek parish, Charleston district, containing about twelve hundred acres, more or less; and, also, to pay the said Jacob Kopmann, on his bond *226to E. H. Rodgers, two thousand dollars, the said bond being secured by a mortgage of the two houses and lots in King street.

If either party to the said agreement should refuse or fail to make a good and- unencumbered title, it is agreed that he shall be bound to pay the other one thousand dollars, with all costs and charges, as damages sustained for non-compliance.a

*227The plaintiff, in pursuance of said agreement, made all-necessary preparations for the performance thereof; delivered possession of the said tract of land in.St. James’ parish to the defendant, and tendered him $2,000, with a deed of conveyance of the Mims’ tract. Whereupon, the plaintjff was informed by the solicitors of the defendant, in a note which is in evidence, that the said Jacob Kopmann could not perform his agreement to procure a clear and good title to the property in King street, the wife of the defendant having refused to renounce her right and claim of dower; and that the defendant was thus prevented from performing his contract, and refused to pay the penalty imposed upon him for the breach of his agreement.

If a plaintiff presents a case *prima facie*good, as this appears to be, he is entitled to a decree for specific performance, unless the defendant can prove that this would be inequitable. Much less evidence is necessary to induce the. Court to leave the parties where it finds them, than to annul an agreement in writing, under seal. And there is a great difference in the position of a plaintiff seeking to set aside a contract, and a defendant resisting specific performance. There is, in this case, no evidence to prove accident, mistake or fraud, affecting the interest of the defendant. This was an agreement for the sale of an old settled plantation, in the District of Charleston, with facility of access to the city. The defendant had all the necessary means of knowledge,, and made the contract after he possessed them. There is no evidence of any description of the property outside of that-in the agreement. .No misrepresentation on the part of the plaintiff has been proved. Nor does it appear that there was any mistake on the part of the purchaser, as to the quality and location of the Mims’ tract, which he knew to be a plantation in the low country. He lived for more than a year within a few miles of it. After paying two visits to the place in the country, subsequently to the trade, he returned. *228to Charleston and expressed his satisfaction with the purchase.

This Court cannot release the defendant from obligation to perform a lawful contract, because of his carelessness or neglect to use the knowledge in his possession, and to acquire additional information if he desired it.

With the facts in evidence, it is a necessary and natural conclusion, that the vendee acted upon his own judgment in making this trade. The perfect indifference manifested by him to the usual and easy means of information, his neglect to examine the property for himself, or to get a description of it from others, and his anxiety to hasten and conclude the contract, certainly is enough to place him, as to matters within the reach of his own observation, in the condition of one who purchases on his own judgment, without reliance on the statements of the vendor. He might have protected himself from the consequences of his negligence, by exacting explicit and unequivocal warranty or representation from the vendor; but this has not been done. As regards the quality and value of the land, the evidence of several witnesses residing near the place represents it as some of the best high land and swamp in that part of the country, which section is thickly settled.

The overseer, employed by the defendant to occupy and cultivate the plantation during the last year, raised a crop upon it, and testifies to the same effect. The defendant has failed to perform his part of the agreement. He has declared his inability to procure and deliver to the plaintiff a clear and good title to the property in Charleston. He has refused to pay the penalty for the breach of his agreement. He has held possession of the plantation in St. James’ parish, and the two houses and lots in King street, since the conclusion of the trade. Since the filing of this bill, he has made a confession of judgment to McKenzie, Cadow & Co., and also executed an assignment for the benefit of his creditors, *pen-dente lite.*

*229I am of opinion that the contract of sale is made in proper form, is fair, certain, upon sufficient consideration, free from accident, mistake or fraud, and in every respect lawful and binding at this time; and that the plaintiff is entitled to have specific performance of the . defendant’s agreement for the purchase of the Minis’ tract.

It is ordered and decreed, that Jacob Kopmann,the defendant, shall procure and deliver to Jacob F. Moorer, the plaintiff, a good and clear title to the two lots of land in King street, described iu the agreement; and that he shall pay rent for the same to the plaintiff, from the date of the tender’ of the price; and it is referred to Mr. Tapper,one of the masters of this Court, to report the amount of rent due for the use and occupation of the said premises.

And if the defendant shall fail to procure the renunciation of dower, the master shall report an assessment for the same, as a proper amount to be deducted from the purchase money of the said property. And the plaintiff shall tender to the defendant two thousand dollars, within one month from the date of this decree, on pain of having his bill dismissed; arid the defendant shall pay the rent due to the plaintiff at the time of such paymeut. The deed of conveyance of the Mims’ tract, introduced in evidence, shall be delivered to the defendant, so soon as he shall .procure and deliver to the plaintiff a good title to the two lots in King street. ,

The costs of these proceedings shall be paid by the defendant.

Note. — A vendor may sustain a bill for specific performance. *Gregorie vs. Bu/ow,*Rich. Eq. Oa., 235. Inadequacy of consideration, without fraud, is not sufficient to prevent the enforcement of a contract. *Sorter vs. Gordon,*2 Hill Ch., 121.

Defendant cannot take advantage of his own carelessness or neglect. *Oldfield vs. Round,*5 Ves., 50S; *Ellard vs. Lan-duff,*1 Ball & B., 249.

*230Equity regards not the form,-but the substance of the agreement. 2 Story Eq., § 715, 751; 2 Powell bn Contra., 167; *Howard vs. Hopkins ;*2 Atkyns, 387, [371.]

- The intention of the parties is the rule of construction. Batten on Spec. Perf., 270, 271.

In cases of covenants, especially when fraudulent misrepresentations occur in the making or execution of such contracts, the Court of Equity exercises a boncurrent jurisdiction with the Couits of Law. 2 Powell on Con., 11.

One of the parties to a contract being by himself incapable of’ performing it, furnishes no ground for dispensing with specific execution. 2 Powell on Con., 167.

The defendant appealed on 'the grounds:

, . 1. 'Because the parties having, themselves, settled the measure of damages, and the method of redress, for the non-ful-filment-of the contract /of sale, it is not competent for this Court to substitute any other in its place.

. 2. Because the complainant, having a complete remedy at law under the agreement made, is not entitled to relief in this Court.

• 3. Because the evidence haying shown misrepresentation and fraud on the part of the complainant, the bill ought to have, been dismissed.

*Rutledge,*for appellant.

*Flagg,*contra.

a

 STATE OF SOUTH CAROLINA.

*Articles of Agreement between J. F. Moorer and Jacob Kopmann.*

Whereas, I, J. F. Moorer, do hereby agree, and bind my heirs, administrators and assigns, to make the above-named Jacob Kopmann, a clear and unencumbered title to a piece, parcel, or tract of land, known by the name of the Mims’ tract, situated, lying, and being in St. James Goose Creek parish, Charleston district, and State aforesaid, containing about twelve hundred acres, more or less; and I further agree to pay said Kopmann, on his bond in favor of E. H. Rodgers, two thousand ($2,000) dollars, secured by a mortgage on two houses and lots, on the west side of King street, and north and binding on Rodgers’ alley, containing sixty-four (64) feet front on King street, and two hundred (200) feet deep, and binding on the north side of Rodgers’ alley, be the same more or less; and should I, J. F. Moorer, refuse or fail to comply to make the above-named title to said Jacob Kopmann, I do hereby bind myself, my heirs and assigns, to pay the aforesaid Jacob Kopmann, one thousand ($1,000) dollars, with all costs and charges, as damages sustained for non-compliance on my part.

Whereas, I, Jacob Iiopmann,/:lo hereby agree and bind my heirs, administrators and assigns, to make the above-named J. F. Moorer, a clear and unencumbered title to the above-named lots, with all the buildings thereon, situated, lying, and being in the City of Charleston and State aforesaid, west of King and north of Rodgers’ alley, containing sixty-four (64) feet front on King, and two hundred (200) feet deep on the north, *binding on said Rodgers’ alley;*and should I, Jacob Kopmann, refuse or fail to comply to make the above-named title to said J. F. Moorer, I do hereby bind myself, my heirs and assigns, to pay the aforesaid J. F. Moorer, one thousand ($1,000) dollars, with all costs and charges, as damages sustained for non-compliance on my part.

Given under our hand and seal, this, the iifteenLh day of March, in the year of our Lord one thousand eight hundred and fifty-eight, and in the eighty-second year of the Independence of the United States of America.

(Signed) JACOB KOPMANN, [l.s.]

(Signed) J. F. MOORER, [l.s.]

Signed, sealed, and delivered, in the presence of

(Signed) J. A. Snell,

(Signed) George Addison.

The’opinion of the Court was delivered by

Johnston, Ch.

The Chancellor' has decided that there was no fraudulent concealment or misrepresentation on the part of the plaintiffs, and this Court has no reason to dissent from his conclusion.

It is objected that the Court was ousted of its jurisdiction to decrée a performance of the contract, by the parties having stipulated damages for its non-performance.

*231The Court is of opinion that this point is not unfrequently misapprehended. Whether the sum fixed in case of nonperformance is a penalty or stipulated damages, depends on the nature of the contract, (considered in the light of all its circumstances,) and the attitude of the parties under it. If, upon being viewed in this way, a conviction results that the sum was fixed as a penalty to compel performance, the Court should execute the agreement. If, on the other hand, it is persuaded that it was stipulated as a substitute for performance, the duty of the Court is to regard it as a case in which the parties have agreed upon damages to be recovered in place of the performance: and unless there is something special in the case to call for a different conclusion, it should leave the parties to the legal remedy thus provided by themselves.

This abstinence is proper for the most part in cases, however, where there has been no part performance on either, side; when nothing has been done *to*change the original posture of affairs, and where the damages fixed may be fairly^ assumed as the fair value of the disappointment experienced.

How should we regard the damages expressed in this contract, in the face of the fact that Kopmann has been let into possession of Moorer’s property, and still retains his own ? Is he to be allowed to hold all the advantages of this fraud ?

Would it be less than a wilful dereliction of duty, on the part of the Court, to hold its hand, unless it were satisfied that $ 1,000, the sum stipulated in this case, was the full value of the property acquired by Kopmann from Moorer, irrespective of what he, Kopmann, was to give in exchange for it ? This was manifestly not so.

It is ordered that the decree be affirmed, and the appeal dismissed.

O’Neall, C. J., and Ward law, J., concurred.

*Appeal dimissed.*