Rider v. Gray

Tuck, J., delivered the opinion of this court’: We have considered this case with every disposition to grant to the complainants the benefit of the agreement which they seek to have performed. Having, in good faith, paid $10,000 in part execution on their side, it is reasonable and just that the other party should comply on his part, if such relief can be enforced consistently with established rules of equity. But we have not been able to discover such stipulations in the agreement as exempt it from the operation of the principles laid down in the cases of Geiger vs. Green, 4 Gill, 472 , and Tyson vs. Watts, 7 Gill, 124 . The chief difference between them is, that here there was a substantial price advanced by the complainants, whereas no such consideration was paid by the parties claiming'execution of the contracts in the two cases referred to.

That circumstance, however, cannot vary the construction'of the instrument, or supply essentials in which it may be deficient, although it is entitled to weight in the final disposition of the case. The learned judge below has very clearly shown the similarity between these cases, and indicated the particulars wherein . the contract, now under consideration, is defective in qualities entitling the complainants to a specific performance. And, concurring with him, that it is not such an one as the parties can call upon a court of equity to execute, we are relieved from th'e necessity of inquiring whether the bill was filed within a reasonable time, and contains a sufficient offer, by the appellants, to execute the contract on their part. The appellees insist, that the decree is erroneous in so far ²⁹⁹ as it makes provision for compensation to the complainants as to the amount paid by them to Gray; and that, if correct in this respect, the appellants did not comply with the condition of the decree by an unqualified submission to its terms.

As to the first objection it may be observed, that the defendants have not appealed, and cannot complain here of this provision in the decree, yet the complainants may, if, being entitled to compensation, the decree does not go far enough in that behalf; and, as to the second, that the terms imposed on the complainants did not take away their right of appeal. The bill was dismissed as to the material relief sought, and under their appeal the complainants may claim a reversal or modification of the decree to suit the equity of the case, and if they had filed the original agreement, without any protest whatever, the appeal might have been prosecuted. This part of the decree, we suppose, was not designed'to cut olf the appeal, but merely to secure the defendant, Gray, against another litigation on the same cause of action, after the complainants had accepted compensation in this case. We must remember that the record is before us on demurrer which admits the case made by the bill, averring that, though true, it constitutes no grount for relief.

Carroll vs. Waring, 3 G. & J., 497. 3 Bland, 135 . If it be true, as we must, assume, that these parties were prevented from availing of the profits of their agreement by the fraudulent contrivances of the defendant Gray, in transferring large portions or shares of this property to others, in the manner stated in the bill, it would be a great failure of justice to discharge him altogether from performing the contract, without any compensation to them for the