The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1859-05-11
No s42ll



The right of the specific performance in this case
must depend upon the contract forth IN the bond
Of Howe mentioned IA the original bill, and no re-
lief can be claimed upon the state Of set out hy
the amended bill except far as the facts therein
shown and the proofs taken thereupon tend 70 ostah-
l~h the claim to relief sought by the or ginal bill.
CouredIng that the contract a shown by the bond
Of Howe l. that Carson bound to psy the notes
go maturity and that If hc failed 10 do Howe
ne discharged from his obligation to convey the land,
yet appears from the testimony that Howe did
avail himself Of that right and that further Indulgence
was given 60 Carson to pay the money after al The notes
had become due.
This is distinctly proved 10y shannon. though he
states that no specific time WAS extended: and he
states the TACT that IN accordance with the under
standing between him and Howe. Carson was 70 Ice
allowed further time 70 make the payment land this
act upon the agreement and Obtained the money
"herewlth to pay the notes. by mortCagng the lands
If tarson-and that there never was any notice given
90 linn that the contract treated by Howe as re-
-oInded until he rendered the money obtained hv
him by that means Robinson also c6rroborates tlia
statement Of shannon. and states that Howe said
when Robinson applied to him in the spring Of 1853 10
acknowledge bond in relation 10 the land. that he
would either pay back the money which Carson had
paid or when Carson pad the balance due, that he
would make him warranty deed TO the land
Ii j. true J. = Howe teStities that after the notes
ie due Howe s:ud e would not wait for the money.
and that. u the money not paid Immediately.
shannon might consider the contract At end and
hc would refund the money which he had received.
:. ". Howe also testIhcs that he told shannon at
ter the notes fell due that W. j. Howe considered the
contract az an end.
circumstances attending the transaction, tend clearly
60 show that indulgence given to Carson after the
notes became due For # the contract had been in
tended to he rescnded on the occasion referred 10
M shannon and the witness, j. : Howe. IL is to br
presumed that Howe would have taken the proper
steps to effect that result 10y rendering back the mon
| ~ paid by Carson and his outstanding notes Yet
| uo such thing done offered; and shannon
states that If had been offered to rescnd. that he
would have raised the money to prevent it, and act
| ing upon the understanding which he states was
made that further time was allowed 70 raise the mon
yy he proceeded to correspond upon the subject with
carson. and raised the money by mortgaglng Carson
| land.
These facts Justify the conclusion that further time
| for the payment of the money was given hy Howe,
and that he did not avail himself then of ms right to
| ry~cInd.
| Under such circumstances Howe could not after.
| JiS put end 10 the contract without an offer 10
rnd the money paid by Carson. and to deliver back
"a outstanding notes And there no prctcncc from
fhe evidence that he did that. The most that !.
shown Is that he proposed TO pay back they money
| but never rendered It. and he neither proposed nor
rendered, to deliver the outstanding notes And is
| plain, that, without that, he could not rescind the
| contract.
| The case appears to be fully embraced within the
/ principles decided in Jackson johnson p Miss
| 4gS and Stewart vs. Gates Both il. l04.
! Decree reversed, and decree Of specific pcrfor
| nance directed. HANDY.