
    Shaw v. Livermore, et al.
    
    Where S agreed to deed a lot to L upon condition, that he would make certain improvements and live upon the lot, it was held that if L performed the substantial conditions with ordinary diligence, lie was entitled to a specific performance.
    ■Equity will extend relief, oven if there has not been a strict legal compliance with the terms of the contract, if it can he done consistently with the essence of the agreement.
    Where one of the conditions upon, which a deed should be made, was, that the purchaser should reside upon the lot, but the term of such residence was not designated, it was held that as the purchaser had complied with all the other conditions to secure title, and had resided upon the lot nearly two years before he left it, that such leaving would not bo an abandonment, and that he was entitled to a deed.
    The recission or specific performance of a contract is left to the sound discretion of the chancellor, to be exercised upon a consideration of the circumstances of each case, under applicable general rules of equity.
    Evidence will not be considered which is not responsive to the bill or answer.
    
      
      In Equity. Appeal from Jaehson D-istrict Gourt.
    
   Opinion ly

G-keeNe, J.

The bill in this case, was filed by John Shaw against Allen- Dutton and Zalman Liver-more for a specific performance. In substance it avers, that, in May, 1845, Shaw contracted to sell Dutton a certain one acre lot of land, in the town of Springfield, in Jackson county, upon the condition that Dutton should build a line fence between said lot and the adjoining land, belonging to said Shaw on the east and south sides of said lot, and pay the sum of one dollar and twenty five cents, and that so soon as Dutton should build said fence and pay said sum of money, Shaw was to make him a deed in fee simple to said lot. The bill further alleges, that in pursuance of the agreement Dutton entered upon the premises, erected a dwelling house thereon, and made other improvements under the observation and notice of said Shaw, and without any objection from him; that in the spring of 1847, Dutton made the fence, tendered the money, and demanded a deed, which was refusedthat Shaw intended to cheat and defraud Dutton; and that Dutton sold the premises to Livermore in April, 1847. The bill concludes with a prayer for a deed in accordance with the contract,’ and for general relief.

The answer admits that there was a contract for the land designated; but denies that the terms of the contract were such as are set forth in the bill. It states, that Dut-ton, who represented himself to be a good house carpenter and cabinet maker, agreed to settle upon the land, build a good house thereon, and also build a good board fence, five and a half feet high on the east and south sides of the premises and carry on his trade; and that upon the performance of those conditions, the respondent was to give and grant the lot of land in question. But the answer absolutely denies that the complainant ever complied with those- conditions, and charges that he did not carry on his trade upon the premises, and that he declared his intention to abandon, and did abandon tbe premises, and tbat be stated on divers occasions to the respondent tbat be did not expect him to give a deed for tbe land as be bad not fulfilled tbe contract. Respondent then admits tbat complainant entered upon tbe lot, and charges tbat during the time be remained there, complainant repeatedly promised respondent tbat be would comply with tbe contract, and respondent was induced to believe that be would do so until be abandoned the premises; admits tbat some fence was made in the spring of 1847, but denies that it was such a fence as tbe contract required; admits that Shaw sold premises to Livermore and tbat a deed was demanded, and refused, because the' contract bad not been complied with, on tbe part of respondent; and the answer denies all fraud and tbe right of complainant to relief in equity.

Tbe complainant filed a general replication.

Depositions were taken by which it is proved by one witness, tbat Shaw admitted tlie sale of the lot to Dutton, for the sum of one dollar and twenty five cents and upon condition tbat be would build a bouse on the lot; tbat in tbe summer of 1845, Dutton built tbe bouse upon tbe lot and moved into it; and tbat there was a board fence built on the east and south sides of the lot. Another witness testified tbat Shaw told him that be had done more than any. other man in getting people to settle at Springfield, tbat he bad given Dutton an acre lot, and on being told tbat be got pay for it, replied tbat be only received government price for the land. Tbe same witness swore tbat Dutton built a bouse upon tbe lot, and lived in it until May, 1847; tbat Dutton on two occasions, tendered one dollar and twenty five cents to Shaw, and demanded a deed which was refused, and tbat tbe fence was finished around the lot before tbe final tender and demand. Other witnesses testified in substance to tbe same effect.

Depositions were also introduced in bebalf of respondent in support of averments contained in bis answer; but tbe testimony is not sufficient, we think, to controvert tbe material allegations in tbe bill, as sustained by preponderating evidence. • -

The-court referred tbe case to 1?. B. Bradley, Esq., as a' master to assess tbe value of tbe' improvements upon the premises, who accordingly returned tbe value, under tbe estimate of witnesses, at one hundred dollars and four cents.

Upon a full bearing, tbe court granted tbe prayer of tbe petition, and decreed a conveyance of the premises to the complainants with a proviso, that tbe decree should be void if Shaw paid complainants one hundred dollars within twenty days.

To this decree several objections are urged, to which we will briefly advert.

1. It is urged that complainants are not entitled to a specific performance, because Dutton bad not performed bis part of the agreement. .But we think this objection is not maintained by tbe facts as they appear in tbe bill, answer and depositions. They disclose no serious default on tbe part of Dutton. He appears to have acted in good : faith, and to have taken all necessary steps towards a substantial compliance with tbe terms of the agreement. He appears to have built a bouse and tbe fence upon the lot as stipulated; to have tendered tbe money and demanded a deed, and to have resided upon the premises as a carpenter and joiner for nearly two years before be sold bis interest to Livermore, and- it is not pretended that these things were not done within a reasonable time. At least tbe important conditions, which would entitle him to a deed from Shaw, appear to have been performed with ordinary diligence. If tbe facts in this case, bad indicated gross laches, or inexcusable negligence in performing tbe conditions of tbe contract on tbe part of tbe complainant, or if, after tbe inception of tbe agreement, and tbe refusal 'of the respondent to execute tbe deed, those facts bad shown a material charge affecting tbe rights and obligations of tbe parties, tbe broad, equitable and just rules of chancery jurisprudence would be violated by enforcing a specific performance of the contract. But on the other hand, this court will extend relief to the party who seeks it, even if there has not been a strict legal compliance with the terms of the contract, where such non-compliance does not affect the essence of the agreement, does no violence to the manifest intention of the parties, nor shows gross negligence in the complainant. 2 Story’s Eq. Jr. §§ 771, 776, 777; Taylor v. Longworth, 14 Peters, 172, 175.

2. The next objection urged is, that the object of the agreement was lost to the respondent by the complainant’s abandonment of the premises. If they had been abandoned by complainant, before he had sufficiently performed the conditions of the contract, to entitle him to a deed from respondent, this objection would have been tenable. But as we understand the case from the evidence before ns, the leading conditions upon which Shaw agreed to convey the lot to Dutton were, 1. the erection of the division fence; 2. of a house on the lot; 3. the payment of one dollar and twenty five cents; and 4. as an incident to those leading conditions, Shaw appears to have attached much importance to Dutton’s living upon the premises, as a mechanic, for the convenience and benefit of the town of Springfield. But, in relation to this fourth stipulation so much relied upon by respondent, the case does not show any definite agreement between the parties. We cannot, therefore, regard it as an essential element of the contract. Besides if it should be deemed essential, it cannot amount to a valid objection to a specific performance, because there was no portion of time designated for the occupancy of those premises by Dutton as a mechanic, before he should receive a deed for them; and in giving a construction to this doubtful branch of the contract, we think it reasonable to assume that as Dutton had occupied the premises, nearly two years before selling his interest in the property and delivering his possession to Livermore, and as he had mainly performed the more important conditions of the purchase from Shaw, he brought himself within the vale of equitable relief. We can observe nothing in the transaction, to support the position that as a condition precedent to complainant’s right to a deed, he should have continued in actual possession of the lot, and in his mechanical occupation, during a still longer probationary term.

L. Clark and F. A. Chenoweth, for appellant.

P. Smith, for appellee.

3. It is proposed that Unless complainant has made out a clear and conscientious case, a court of chancery should in the exercise of a sound discretionary power, leave the party to his action at law for damages. It is true in equity that the determination of all cases respecting the re-cission and specific performance of contracts, is a matter of discretion in the court and not of right in the party; and in the exercise of that discretion upon a sound, reasonable, and unbiased consideration of the peculiar circumstances connected with each case, a court should call in the aid of general rules and principles of equity jurisprudence so far as their application may be apparent. Thus guided in the exercise of that discretionary power, we think the circumstances of this case, together with the certain, fair and just objects of the agreement, show that the decree of the court below is reasonable and proper.

4. But another objection to which it may be well to advert is, that the complainant discharged respondent of his contract. This position is assumed from a portion of the evidence. But as that evidence is not responsive either to the bill or answer, and is not only impertinent but vague and unreliable, we conclude that this objection is also without foundation.

Decree affirmed.  