*Present*— Chancellors Hutso.v, Matiiews and Eitii;i>ge.

#### Job Colcock *vs.*Pierce Butler.

SEPTEMBER, 1792.

CASE EX XXI.

BECHET HOOK. p. H2.

The court will not decree the specific perform-one-- of a contract for the purchase of a house, when; the seller 1ms not complied with the terms, by ha-viny-lltcbnil-dinjfs cum-ple cdv. i’.liin the siipul-! ted time

This was a bill filed by the complainant to compel the specific performance of a contract whereby defendant agreed to purchase two houses in Charleston from the complainant at a valuation. The complainant states that: lie purchased lots in town which cost him 2200?. on which he erected houses which cost him 3700?. — That he after-wards, on the 20th April, 178G, contracted with major Butler for the purchase of a plantation on John's Island, at the price of 5000Í. sterling; now not saleable at more than 1000Í. — On this amount the defendant has judgment at law against the complainant. That in July, 1787, *308the complainant was desirous to make a substantial payment to major Butler, (who had no security to the bonds) and for that purpose agreed with liis attornies to convey the house and *lots*abovementioned to him, and the attor-nies Mr. Rutledge and Mr. Payne, who it is charged had full powers, agreed to accept the same at a valuation to be made by indifferent men, in payment to major Butler; The unfinished house to be finished within three months in the same manner as the first house; That two persons Mr. Toomer and Mr. Eveleigh were chosen to value them; who did so at 7100/.- — That major Butler was advised of these transactions, and acquiesced in them, and directed Mr. Payne to sell the houses on his account, and lie accordingly called on Mr. Colcock (in his character of Yendue Master) to advertise them for sale, and they were put up for sale as the property of major Butler, hut were not actually sold, for defect of bidders: That the complainant exerted himself to finish the house according to the agreement, hut the difficulty of getting workmen and materials prevented his completely finishing the work for about six months, though the material parts were done much earlier: That the complainant was willing to pay rent during the short delay of finishing the building — But that the defendant availing himself of that delay, refuses to comply with the contract. The bill prayed for specific performance of the agreement.

The defendant by liis answer denies that the power of attorney gave his attornies such power as was charged: That it was nothing more than a common printed power with authority to receive and pay monies and institute suits: That however rather than that his acting attorney Mr. Payne- should be a sufferer for exceeding bis powers, be was determined to submit to a moderate loss; and expecting that Colcock would perform bis part of the agreement he wrote a letter acquiescing in the agreement; though he was then aware that it was not binding on him. The defendant also afterwards offered to ratify the agreement if the appraisers would themselves become the purchasers from him at 500/. less than the appraisement: That the defendant never received any of the rents: *309Thai the complainant must have supposed the bargain to have been at an end, as he gave in the spring of 1739, an order to repay out of the rents of the ¡¡aid houses, monies which were absolutely loaned to him by the defendant. And the building could not have been finished in six months, as Colcock borrowed *461.*of defendant a year after the contract to glaze and finish it oil: That defendant must have considered the bargain at an end and the 'property his own, for he went, to the expense of a slated roof; and he advertised the house for sale as the properiy of the estate of Yanderliorst (from whom complainant liad purchased it, and mortgaged it back) and complainant made a payment on Ins debt to defendant on the John’s Island purchase, which was unnecessary if this contract was subsisting.

At the hearing of this case it appeared from Mr. Fa} ne*s testimony, that the power of attorney was a common power to receive and pay money; and gave no special power to purchase houses. — Eat that major J.idler unwilling that his attorney should suffer for exceeding his powers wrote a letter acquiescing in his conduct, and gave, orders to Mr. Payne to have the houses sold: That it was C-olcock's own proposition to finish the houses in three months; that is, sometime in November: That on the receipt of the letter of the 28th August, 1787, from major Butler, he, Payne, called on Colcock and informed him of it. On the 19th October, 1787, the advertisement, for the sale of the houses took place — Bui they would not bring the price they were valued at, and major Butler had desired that they should not be sold under the ap-praisement: The witness did receive several small payments of rent — one of 51. and two of 71. 10s. each at different times,before the. arrival of major Butler. Me supplied complainant with 461. in July, 1788. Major Butler at first said he would pay the 1000Í. penalty; afterwards lie said he would avail himself of Mr. Colcock’s not having complied with the agreement. — Mr. Colcock said there was another agreement in which *55751.*was tobe given. "Witness did not understand the agreement was condition»!. Both garlics broke the verbal agreement- • *310Did not know that any deduction was to be made from the price of the plantation. The mortgage of the houses by Colcock to Vanderhorsfs estate was foreclosed in December, 1789, and the property sold.

Mr. Rutledge testified that he was satisfied the power did not extend to give the attornies the authority they exercised.

Mr. Toomer proved the valuation.

Mr. Donaldson said he was well acquainted with the houses, they were finished in a plain manner.

- Major Bocquct bought the property at the sale (under the mortgage) for 4000Í.

Mr. Ford for the complainant,

argued that there was a fair and regular contract by which the defendant was bound, and the court ought to decree a specific execution. There was no pretence of unfairness. It was made openly, and the price fixed by indifferent third persons of un-impeached character, chosen by the parties, and well versed in such matters. Then as to the power: — If the attornies had not full authority, major Butler confirmed their contract by a letter, and even authorized one of them to sell the houses on liis account. This was communicated' to Colcock who rested satisfied therewith, and took no steps to obtain a purchaser for the property, which was his main object, to enable him to pay for the plantation; and upon the faith of that agreement he went on to make expensive finishings to the houses which he might not otherwise have gone into: That the attorney of major Butler actually offered the houses for salo as his property, and received part of the rents: That the only pretence on which the contract could bo shaken, is that one of the houses was not entirely finished within three months as agreed upon. It was substantially finished and wanted only the ornamental finishing which was done in about six months. That this defect in point of time is not regarded in such contracts — It is not deemed material; for compensation could be made in rent for such time as it was untenantable. That if the valuation was a high one, property having fallen considerably since, the same could be said of the plantation purchased *311by Colcock from Butler: It was bought at a price far greater than could be obtained bow, (as appeared by tiie evidence) — -That it would be most unequal and therefore inequitable that whilst the complainant Colcock should be held to his purchase, which indeed he did not contest, that the other party should be released from his contract, when both stood on the same ground, to wit: That both had agreed to give large prices for property which had since fallen greatly in price. The equity then of the parties is equal; and it would be very hard to hold one of them bound and the other absolved. The offer of the house, and the sale was expressly to meet the debt ou the purchase of the land. It was alleged that the houses not being finished in time, major Butler could not sell them. But he did not wait for the time to expire. He ordered his agent to sell the houses immediately, even before the three months were elapsed. See *1 P.*Wms. 61, 542. 1 Bro. C. C. 26, 440, 785. The case of Cass *vs.*Ruddele, 2 Vern. 280, is strongly in point. See also 2 Vern. 423. When an agreement is performed in part by one party, it is too late for the other to get off. See 4 Bro. P. C. Though the vendor does not tender conveyances in the time limited in the articles the court will not regard the neglect; but will still decree a specific performance. 1 Atk. 12, Gibson *vs.*Patterson. The insertion of a penalty ixx the articles of agreement ax ill never prevent the court from decreeing specific execution. — . 2 Atk. 371, Howard *vs.*Hopkins. Letters hy a man to his agent, are good evidence against him to establish an agreement. 3 Atk. 503, Welford *vs.*Beasly. Colcock might have x’ccovcml the 1000L penalty at law from Butler, and Butler might have recoxex*ed as much damage from Colcock, as he could shew he sustained by the house not being finished in time. 1 Lord Raym. 124, 420. See 1 Vesey 253 and 444. The impairing or finishing the house was not a condition precedent. See 1 Vern. 83, 167, 222. 2 Vern. 366. Upon ex ery principle then of contract, of equity, of equality, complainant xvas entitled to a decree for the specific execution of this agreement.

*312General Pinckney for defendant,

contended that the power of attorney in common form, gave no authority to purchase lands; and that if, by the letter of the defendant, in which from delicacy to his attornies, who had exceeded their powers, he acquiesced in the agreement made for him by them with the complainant, he had a right to require. that the terms should be strictly complied with. That by the agreement the unfinished house was to have been finished in three months — But it was not finished in six months; and indeed not fully for a twelvemonth. This was a real disadvantage to defendant. If finished he might have sold, as it was his intention to do. But he could not sell, and real estate meantime fell rapidly in price. The payment of rent by complainant would be no equivalent for the fall of price. But in fact no rent had been paid by Colcock and defendant himself never received any rent. That the court would more readily forbear to exercise its extraordinary power of decreeing the specific execution of contracts, under such circumstances of error and hardship. That the price agreed upon to he given by his attornies was excessive: and defendant offered to ratify the agreement if the appraisers would give in bonds *5001. less than the*appraisement; which they refused. That the complainant himself conceived flic-bargain was at au end, for he gave in the spring of 1789, an order to repay out of the rents of the said houses monies which wore loaned him by the defendant. He *also*covered it with a slated roof which was far more expensive than a shingled roof. He was not bound to do this by the agreement. His doing so is an additional evidence that he considered *the*agreement at an end — And he also made a payment on his debt for the John’s Island land, which would have been unnecessary, if he had relied on this agreement — And finally he advertised'the house for sale, as belonging to the estate of Vandcrliorst (from whom Colcock had bought it) which he would not have done if he had considered the agreement binding and .subsisting. That specific execution of a contract is au equity — and parol evidence will he admitted to rebut an equity. It will be received to shew that a written agree-*313aient has been waived in part, or in whole, or varied in the terms by a subsequent parol agreement. Powel on Contr. 427. 6 Bro. P. C. 580. Where a bargain is made and all the parties consent to dissolve it, and other conditions Are proposed, the new agreement destroys the former bargain. 2 Mod. Rep. 243. For new agreement see 4 Burr. 2483. In Gorman *vs.*Salisbury, 1 Vern. 240, a bill for specific execution was dismissed, a new and a different agreement being shewn. So in Legal and Miller, 2 Vesey 299—and in another case, by the master of the rolls. 2 Vesey, 376.

DECREE BOOKS'. 88t

Where one party has trilled or shewn a backwardness in complying with his part of the agreement, equity will consider this a good objection to decreeing a specific execution in his favor, especially if circumstances are alter» ed, in the mean time-r-2 Powell on Contr. 260. 1 Bro. P. C. 27. 5 Viner, 538. See also 2 Burr. 1012. Moses *vs.*M‘Farlane. A party seeking specific execution of a contract must shew that hedías performed all that ivas contracted to be done on his part, to entitle him to .a specific performance. 2 Powell on Contr. 19, 20, 21, 26, The rule of all agreements is, that they must be performed on all hands.

When a hill was filed by the representatives of Van» derhorst’s estate to foreclose, the equity of redemption in these houses and lots, the defendant Butler was not made a party, as he ought to have been, if he was interested. Hinde 151. Colcock was made defendant — liedid not demur to the bill of foreclosure, and thus admitted that the equity of redemption was in him. See Hinde 158. 2 Atk. 31, Ashhurst *vs.*Eyre, and Plunket *vs.*Penson.

Chancellor Rutledge

delivered the decree of the court:

This was a hill for specific performance of a contract to accept of two houses at a valuation. The. confirmation of defendant by letter legalized his attorney’s contract, so far as to make, it an executory contract. This court will in some cases relieve, even where there is a penalty, and decree a specific performance. la this case it appears on the face of the agreement, that one *314of tlio houses which was unfinished, was to be m.shed by complainant within three months; whereas i tappearcd by evidence that it was not finished tor eleven months. The court will in some instances relieve against lapse of time, but this was immoderate; and. the property rapidly depreciating. All the cases respecting compensation relate to instances where compensation can be precisely ascertained. The rent would not be complete compensation for the great decline in the value of the property. Indeed it is impossible to ascertain it. It is a case sounding in damages and not for this court. If the house had' been finished according to contract, it might have been sold before the great fall of price. Perhaps the unfinished state of it prevented offers. Besides, the complainant gave no notice to the defendant of the bill filed for the foreclosure of the mortgage on the houses, for the debt due by complainant to Vandcrhorst. The lis pendens is not notice in such a case as this; he should have had actual notice. — > Complainant acted as owner of the houses, received rents, &c. But the court thinks the immoderate laches of the complainant in finishing the house is alone sufficient to bar complainant from relief in this case. Defendant early after his return refused to comply with the contract; yet the complainant never filed 1Ü3 bill for four years after, and till the property was greatly depreciated. When sold under mortgage, the property did not bring half the sum the defendant contracted for. The complainant must he left to his remedy at law.

Desaussure and Ford for complainant — Gen. Pinck-ney for defendant. — 'Bill dismissed with costs.