
    Brachan v. Griffin.
    [Wednesday, November 16, 1803.]
    Contract — Speculation upon Paper Money. — A. agreed, in consideration of 25,0001 paper money, to be paid h im by R. in the years 1780 and 1781, to pay the latter, 2,5001. specie, in 1790. The contract held obligatory.
    Griffin brought a bill in Chancery, against Willis and Brachan, to be relieved from an agreement entered into, March 27th, 1780; whereby Willis was to pay the plaintiff 15,0001. on the 4th of May following, and to give his bond for payment of 10,0001. on the 4lh of May, 1781: In consequence of which, the plaintiff was to give Willis his bond for 2,5001. specie, payable on the 4th of May, 1790; and, if he failed to make the payment of the 15,0001. on the appointed day, the plaintiff was to be at liberty to declare the contract void. The bill alleges, that the pla'intiff gave his bond for the 2,5001. ; but, that Willis never paid the 15,0001. or gave his bond for the 10,0001. Notwithstanding which, he had assigned the plaintiff’s bond to Brachan, who had instituted a suit upon it at common law ; and, therefore, *the bill prayed an injunction. The answer of Willis states, that he paid 8,0001. of the 15,0001. to the plaintiff’s order, and the other 7,0001. to the plaintiff himself; who first agreed to take Mayo’s, but afterwards actually’ accepted Dixon’s bond for the 10,0001. The answer of Brachan says, that the assignment was for a valuable consideration ; and that the plaintiff made no objection to the bond for several years.
    The Court of Chancery being of opinion, that the plaintiff was only liable for the value of the 10,0001. in May, 1781, dissolved .the injunction, as to that value, with interest, and made it perpetual as to the residue. From which decree, Brachan appealed to this Court.
    Wickham, for the appellant.
    There is a difference between a man’s coming into a Court of Equity, as a defendant or a plaintiff, when the object is to set aside, or enforce an agreement. For, the Court will refuse to set aside a contract, when it would not decree a specific performance. Brachan has obtained a judgment at law; and, therefore, his right must prevail, unless the plaintiff in Chancery proves a superior equity. There is nothing in the case which tends to shew, that the parties did not contract on equal terms. Willis is a defendant in equity, and asks nothing. Therefore, the plaintiff must prove a better title, or he cannot succeed. [Browning v. Morris,] Cowp. 790. No inequality of situation in the parties has ever been insisted on; and, of course, there is no cause to impeach the contract, upon that ground. There was no inequality of price; but, if there was, that would not be sufficient to set aside the contract. [Willis v. Jernegan, ] 2 Atk. 251; Fonbl. Treat. Eq. 116, [127, 2d Am. ed. ;] for, if an agreement is fair at first, equity will not set it aside, upon the happening of any future event. [Mortimer v. Capper,] 1 Bro. C. C. 156. Both parties are to be put in the same situation, as if the contract had been fulfilled. The bill charges, that the 15,0001. was not received; but, the answer, which is responsive, *expressly alleges that it was; and the receipt is referred to. Griffin was not to execute his bond for the 2,5001. until the 10,0001. was paid; and, therefore, the presumption is, that it was paid, as the bond for 2,5001. was actually given. The answer must either be taken to be true, or not resorted to at all. Brachan is an assignee without notice of any equity', if there was any; and he was suffered to retain it for ten years, without any information relative to it. Willis’s letter, concerning the assignment, must relate to that, which was made to Brachan. Griffin comes into equity to set aside the contract; and, therefore, he is not entitled to relief, further than the terms of the agreement; that is to say, to set off the value of the 10,0001. against the 2,5001. bond.
    Randolph, contra.
    The contract was not fulfilled by Willis himself; and, therefore, he has no right to insist upon performance, on the other side. It makes no difference that Griffin is plaintiff; because, he had no other redress. Nothing ever was paid for the 2,5001. ; and, therefore, Brachan cannot be entitled to it. The giving the bond is no proof of it; for, the articles of agreement required the bond to be given in May, 1780, and the 10,0001. was not to be paid until May, 1781. Added to which, it is unquestionably true, that there is no evidence that the 10,0001. w'as ever paid. Mayo’s bond was never agreed to betaken; and Dixon’s tender does not establish it. The money never was tendered ; but, if it was, it was not done in time; nor the money kept; so that Willis sustained no injury. The contract was, in fact, a wagering bargain. It makes no difference that Brachan is an assignee; for, he took the bond, subject to all equity against it. Willis’s letter to Griffin proves nothing; for, Griffin was not bound to communicate with Brachan, until the latter applied to him, upon the subject. The guarded answer of Brachan leads to a suspicion, that he was acquainted with the circumstances *of the case; especially, as it appears that he had an indemnity.
    Wickham, in reply.
    Griffin got what he bargained for; and, therefore, cannot complain. The object of the plaintiff is to dissolve the contract, merely on the ground of its being a bad bargain, in event. Griffin agreed to take the money in Dixon’s hands; and he tendered it. Of course, it was Griffin’s own fault if it was not paid. If paper money had appreciated, Griffin would have had the benefit; and, consequently, there is no hardship in obliging him to stand by the depreciation. The silence of Griffin for so long a time after the assignment to Brac-han, amounts to a concealment, which operates to his own prejudice, and not to that of Brachan. The answer of Brachan contains nothing, which leads to the suspicion contended for, upon the other side. The indemnity makes no difference: for, that was only to guard against a failure in circumstances, and not of obligation.
    Cur. adv. vult.
    
      
       The principal case is cited with approval in Boniware v. Newton, 18 Gratt. 718; and Hilb v. Peyton, 21 Gratt. 892. See monographic note on “Contracts” appended to Enders v. Board of Public Works, 1 Gratt. 364.
    
   ROANE, Judge.

This was a contract between Griffin and Willis; whereby, the former agreed to give his bond for 2,5001. specie, payable at a distant day; on consideration whereof, the latter agreed to pay him 15,0001. paper money, on or before the 4th of May, 1780, and give -his bond for the further sum of 10,0001. payable on or before the 4th of May, 1781; with a proviso, that the former might declare the bargain void, or not, if the latter failed in payment on the 4th of May, 1780.

The first sum was paid by Willis, shortly after the day; the acceptance whereof, by Griffin, is deemed a renunciation of his power to revoke, reserved by the appellee.

*As between Griffin and Willis, in the event which has happened of the abolition of the paper currency, the general scale would have been resorted, to, as at the time of the contract for the ascertainment of the value of the paper monejr had not an agreed rate of depreciation been in the contemplation of the parties. That rate, as evinced by the contract itself, and the testimony,was ten for one. Willis, then, would have been liable to Griffin, under the decisions of this Court, for the very sum in specie, (as the agreed 'value' of the paper at the time,) which his assignee is now claiming from Griffin upon his bond.

Where, then, is the inequality of this contract? 'But the matter did not rest here. Willis substituted a bond of Dixon, for the 10,0001. for which he paid the money, and which terminated the business between him and Griffin, by consent of the latter.

If that bond has been paid off to him, in paper or in specie, according to the legal scale, (the agreed one being relinquished by him by the effect of that transaction), it is nothing to Willis or his assignee, the former having complied with the agreement on hi's part.

There is, then, certainly no inequality or inequity in the transaction, which should affect Brachan the assignee for valuable consideration, and without notice of any objection.

I think, therefore, that the injunction ought to be .dissolved.

FDEMING, Judge’.

The contract in this case, was founded upon speculation on both sides. Griffin thought, the present use of the money would be advantageous to him; and Willis, that it would be more beneficial to receive the specie at a distant day. The contract seems ,to have been fully understood *by the parties; and to have been fairly entered into upon both sides. In its origin, then, there was no objection to it; and the only question is, whether it has been performed. The bill states, ,tha.t the 15,0001. were not paid; nor the bond given for the 10,0001. : although the plaintiff executed his bond for the 2,5001. specie. To say nothing of the, improbability o.f. a man’s giving his bond without the equivalent, the bill is expressly contradicted by the answer and several documents in the cause,; which prove a substantial fulfilment, upon the part of Willis; who, therefore, w.as entitled to demand performance from the other partj’, however unfavourable the contract may have eventually proved to Griffin: Of course, Brachan, who now represents him, has the same right to the specie; and, therefore, there is not the slightest ground for the injunction, which ought to be wholly dissolved, and the bill dismissed.

CARRINGTON, Judge.

This was a mere speculation upon the paper currency of the country. Griffin attached a value to the present use of a considerable sum of it: Willis calculated that it would be better to part with it, and receive specie for it at a more distant period. Both of them acted fairly in making the contract, and, there is nothing to taint or impeach it, if it has been complied with by Willis. The bill alleges, that he did not comply; but the answer contradicts it; and that receives considerable support from the documents in the cause: Which, taken' together, very clearly establish, that the contract has been substantially performed, on the part of Willis; and, consequently, no reason can be adduced, why Griffin should not be held to a fulfilment, upon his part also. I am therefore of opinion, that the decree ought' to be reversed, and the bill dismissed.

DYONS, Judge.

The ' case appears to me, to be a very plain one against Griffin, who entered into a fair . contract,' which has' b'een substantially fulfilled *by the other party; and, consequent^, he can have no pretext for not performing it himself. I concur, therefore, that the decree ought tó be reversed, and the bill dismissed.  