Penn v. McCullough

Robinson, J., delivered the opinion of the Court. We cannot agree with the Court below that the plaintiff is entitled to a specific performance of the contract set out in the bill. The contract is dated 15th J une, 1888, and reads as-follows: ²³¹ ‘‘I have this day agreed to and have sold to Mr. W. W. McCullough eighty feet of land in width, running parallel with our division line from railroad to Bunker Hill road, containing about two acres; price for the above named piece or parcel of land, fifteen hundred dollars. 1 herewith acknowledge receipt of check for two hundred dollars, as part of the purchase money. “J. W. Penn.” The bill for the specific performance of this contract was not filed till 6th of March, 1890, nearly two years after its execution. The plaintiff alleges, and in his testimony says, he has fully complied with every requirement of said contract, and has tendered to the defendant the full amount of the purchase money, but that he refuses to accept the same, and refuses to convey the land thus sold to the plaintiff.

The defendant, in his answer and in his testimony, denies that the plaintiff has complied or offered to comply with his part of said contract. On the contrary, although repeatedly requested by the defendant to pay the purchase money, he lias met these requests first with one excuse and then another, until finally the defendant returned to him the cash payment of two hundred dollars, and the contract in question was, with the mutual consent of both parties, rescinded. It can hardly be necessary to say, that the plaintiff was bound to make out his case by satisfactory proof. We say “satisfactory proof,” because a Court of equity will not decree specific performance in a doubtful case.

And, besides, the plaintiff must show that he has performed, or was ready to perform, his part of the contract, and has not been guilty of laches or unreasonable delay. In the language of Lord Alvanley, M. R., in Milward vs. Earl Thanet, 5 Ves., 720, note b: “A party cannot call upon a Court of equity for a specific performance, unless he has shown himself ready, desirous, ²³² prompt, and eager.” Or, as was said by Lord Cranworth, in Eads vs. Williams, 4 De G., M. & G., 691: “Specific performance is relief which this Court will not give, unless in cases where the parties seeking it, come promptly, and as soon as the nature of the case will permit. ” Now, while there is a direct conflict in the testimony of the plaintiff and defendant in regard to every material fact, the testimony of other witnesses, not parties in interest, shows "beyond question, not only that the plaintiff failed to perform his part of the contract of purchase, hut further, that being unable. to pay the purchase money, the contract was, with his consent, in the latter part of 1889 rescinded. It appears that in June, 1889, a year after its execution, on being requested by the defendant to close the matter, he proposed to give notes of one and two hundred dollars, payable monthly, which the defendant refused to accept. It was then agreed that they should meet on the premises the "Wednesday following, when the whole matter in regard to the sale and purchase of the property was to be settled.

The defendant was there on the day thus appointed, and remained there till dark, but the plaintiff failed to keep his engagement. On the 15th of August following, the defendant went to plaintiff's- office, and again requested that the matter should be closed, and named the 16th, 11th, 19th and 20th of August for that purpose, either of which days would suit him, but the defendant would not agree upon any day. So finding all efforts on his part to bring the plaintiff to a settlement unavailing, the defendant, on the 19th of August, wrote to him as follows: “On the 3rd May, 1888, we did agree as to bargain and sale of said laird, and our agreement was for an immediate transfer of property, and removal of fence. You distinctly informed me that every thing should he ²³³ fixed up within a week or two; about eighteen months having elapsed our agreement of May, 1888, is entirely void, and made so over a year ago by a non-compliance on your part.

The $200 you gave me, or rather your