
    *Courcier and Ravises v. Thomas Graham.
    In decreeing specific performance, equity can not apply the doctrine of abatement or compensation to the defendant, so as to compel him to accept a less or pay a greater price. Decree upon such principles is erroneous.
    This was a writ of error, brought to reverse a decree of the court of common pleas of Hamilton county, pronounced in favor of the defendant in error against the plaintiffs in error, and was adjourned from the Supreme Court in Hamilton county. The case was this :
    In the year 1818, Graham made a contract with Courcier and Ravises, to sell them a tract of land, near Cincinnati, at a price per acre to be fixed by men chosen by the parties, and to be paid for in merchandise in Philadelphia. Merchandise estimated at eleven thousand four hundred and eighteen dollars thirty-two cents was delivered to Graham on the contract. The land, containing one hundred and two acres, was subsequently valued under the contract at three hundred dollars per acre. Exception being taken to the title, Courcier and Ravises sued upon the contract at law for the amount of merchandise delivered, and recovered. Graham brought his bill in equity to enforce a specific performance of the contract. The court of common pleas decreed a performance upon terms. The decree reduced the price of the goods delivered thirty-three and a third per cent., and the price of the land thirty-three and a third per cent., and decreed the balance of purchase money to be paid in cash. The general error was assigned.
    Gazlay, for plaintiff in error:
    This decree is erroneous for several reasons:
    1. It does not direct a specific performance of the contract between the parties, but makes a new contract, which a court of chancery can not do.
    2. It is in the nature of a new assessment of damages, in an action at law, the court substituting their assessment for that of the jury, which is unheard of.
    3. It is setting aside a judgment at law, and making a decree in its place.
    4. It does not give the defendant the right to pay in merchandise as the contract did, but directs payment in cash. And in case of failure, a sale of the land to raise the money.
    *The rules that govern courts of equity, in decreeing specific performance, are distinctly laid down and explained in Sugden’s Vend. 153, 172, 277; New Con. 342, 346, 89, 214; Coop. Eq. 133.
    C. Hammond, for defendant in error:
    The exceptions taken to the decree exist not so much in the decree itself, as in the reading which it suits counsel to give it.
    The doctrine of compensation and abatement in decreeing specific performance, is as old as that of decreeing specific performance itself. So is the doctrine of decreeing the performance of contracts, not according to their literal te'rms, but according to circumstances that exist at the time of the decree. It is settled that “under the head of specific performance contracts substantially different from those entered into have been decreed.” 6 Ves. 677; 10 Ves. 605; 13 Ves. 73, are to the same point.
    The decree proceeds upon the doctrine of the cases here cited, and they furnish answers to all the objections, which are in fact but the same objection, in a different form of words.
   By the Court :

This decree is erroneous. As we understand the doctrine of compensation, abatement, and modification, it is this. The cornplainant asks for a decree, and it may be granted to him upon terms. He may be told that he shall take less or give more, and to do so or not, is at his own option. But the court can not tell the defendant that he shall take less or give more, because to tell him so gives him no option whatever. In this case it was competent for the court to decree a specific performance at the request of Graham, upon the terms of abating thirty-three and a third per cent, in the price of the land. But the court had no power to reduce the price of the merchandise. The decree must therefore be reversed, and we retain the cause for further hearing on the whole merits. 
      
      Note bx thb Editor. — See Townsend v. Alexander, ii. 18, and note to that case.
     