
    Fisher A. Tyler vs. William H. McCardle et al.
    Time is of the essence of a contract when the parties, by fixing upon a time for its performance have indicated that time was regarded by them as important ; or else it must result from the nature and circumstances of the contract.
    Where, therefore, T. holding the joint note of M. and P. on which suit was pending, proposed to M. the principal in the note, that if M. and P. would take up a note of T.’s in bank, on which were indorsers, but which was of less amount than the note of M. and P., T. would dismiss the suit against M. and P., and release them from their liability on the note sued on ; it was held, that time was no further of the essence of the contract than that it was incumbent on M. and P. to take up the note of T. before the suit at law was called for trial, and judgment obtained thereon.
    A party cannot obtain a decree for specific performance, without he shows a compliance or readiness to comply with his part of the contract.
    Therefore where T., who held and had sued upon the joint note of M. and P. proposed to them, if they would take up the note of T. for a less amount, indorsed by other parties, and held by a bank, he, T. would dismiss the suit against them, and release them from their liability to him, and M. and P., after waiting until the suit at law had been tried and judgment rendered against them therein, proceeded to take up the note of T. in bank, and filed their bill insisting upon a satisfaction of the judgment at law against them by reason thereof; held, that they were not entitled to relief against the judgment, because they had failed to comply with their part of the agreement, which was, to take up the note of T., pending the suit.
    Where the' holder of a joint note, on which he has brought suit, proposes to the makers that if they will take up his note for a less sum he will dismiss his suit against them and release them from their note, and they fail to do so before the case is called for trial on their note, the holder has the right then to recede from his proposition, and to insist upon his judgment; and if the makers of the note, after judgment, pay the holder’s note, they cannot insist upon a credit for a greater amount than the note which they have paid.
    Damages on the dissolution of an injunction do not follow as a matter of course ; if the court is of opinion the injunction was sued out for delay, it then awards damages; but if of a contrary opinion, it refuses to allow them. Their allowance is in the discretion of the court.
    ON appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    William H. McCardle filed his bill in the court below on the 11th of April, 1842, against Fisher A. Tyler, S. S. Prentiss, and Marmaduke Shannon,
    The bill avers that F. A. Tyler sued the complainant and the defendants Prentiss and Shannon, in the Warren circuit court in this state, and recovered judgment therein, on their joint note of $10,000, for $11,111 10. That this judgment was recovered at the May term, 1841, of said court. An execution upon it had been credited by Tyler with the sum of $10,025 70; execution for the residue was then in the sheriff’s hands for collection, who would, unless restrained, collect the same.
    The bill further avers, that during the pendency of the suit at law, Tyler, apprehensive that the parties to the note were insolvent, made a proposition to the complainant, and to Pren-tiss, that if they would take up and pay a note of Tyler’s, held by the Commercial Bank of Natchez, for about $9,000, and would release Tyler therefrom, then Tyler would dismiss the suit at law, and release the complainant and his sureties from all liability on the note in suit; that the complainant and Pren-tiss acceded to this proposal; and supposing that Tyler was acting in good faith, did take up his note (and release Tyler therefrom) then held by the Bank of Natchez, and had hoped that Tyler would dismiss the suit at law, and release the parties from their liability on the note sued on; that he had not done so, but had fraudulently taken a judgment on the note, and had credited the execution thereon merely with the amount of the note taken up from Natchez, and was proceeding in violation of his agreement, to enforce payment of the balance, under pretence that there was not a compliance with the proposition by the delay of the complainant and his sureties, on their part, and that he had withdrawn his proposition before it was ■complied with. The bill avers that the proposition was made without limit as to time; was carried into effect in good faith, and was actually accomplished before a judgment was obtained, and that Tyler had never withdrawn his proposition. Two letters of Tyler’s are made exhibits to the bill. The bill prays for perpetual injunction, that the judgment at law may be entered satisfied, and that the note sued on therein may be cancelled and destroyed.
    Of one of the letters of Tyler to complainant, the following are extracts : “ Of course you do not conceive me bound, after so long a time, to exchange notes without the difference. The note was not taken up at the time agreed on, and the offer through Mr. Hay was subsequently withdrawn.” “I made the offer, to tell the truth, under an impression, which I learned immediately after was erroneous, that my security might be inadequate,” &c. This letter was dated March 24, 1841.
    The other letter from the defendant gives his reasons for not complying with the agreement; it is dated March 8, 1842, after the judgment at law.
    The answer of F. A. Tyler, states that he did not obtain the judgment at law, and enter the credit on the execution therein, as stated in the bill. That he did, during the pendency of the suit at law, about August, 1840, make the proposition stated in the bill, to the complainant, but that the proposition was coupled with a condition that the complainant should pay the cost of the suit at law, which he has not done. The answer admits, that, after “ many vexatious delays, on evasive and frivolous pretences,” the note in the bank at Natchez, made by Tyler and Shannon, and one O. C. Brooks, for $8,800, had been taken up by the complainant and his surety, S. S. Prentiss; and that at the request of Prentiss, he had credited the judgment at law with the proceeds thereof, as soon as he knew the note was taken up, about the spring of 1842. That he never made the proposition to Prentiss and had no knowledge that Prentiss ever acceded to it.
    He states, that it was part of the proposition that it should be immediately taken up; that his prominent object, well known to the complainant, was to release Brooks his surety from the payment of the note in Natchez. “Hence,” says the answer, “the reason its immediate fulfilment was required.” He charges that time was of “ the essence of the contract,” and that, while he admits the note was taken up, denies that it was done according to the contract, but was delayed and not completed until October, 1841. He denies the statement in the bill that the note in Natchez was taken up before the judgment at law was rendered, the judgment having been rendered in May, 1841, and the note taken up in October, 1841.
    He admits his letters, and states that one of them was written before the judgment was rendered, and gave notice that he no longer considered himself bound by the proposition.
    That he gave Prentiss notice before the judgment was rendered that he no longer considered himself bound to his proposal.
    That his proposal was made in August, 1840, and not fulfilled till October, 1841, which he charges to be an unreasonable delay. He insists that by the complainant’s own showing the note in Natchez was to be taken up, before the suit was to be dismissed, and therefore before judgment, from whence he argues, the complainant is not entitled to his relief.
    No more of the answer need be noticed.
    The answer of S. S. Prentiss, states that Tyler made to him a broad and unlimited proposition that if he would take up and pay the note in Natchez, he would discharge the debt in suit in Warren. That under that agreement he, in good faith, took up the note in Natchez, and that Tyler, in attempting to collect the rest of the debt in Warren, is fraudulently violating his agreement with respondent.
    The letter of M. S. Henderson, (filed and agreed to be received as evidence,) to S. S. Prentiss, states that the proposition by Prentiss to the Commercial Bank of Natchez, to take up Tyler’s debt, was agreed to March 1, 1841.
    The deposition of T. A. Marshall proves that in May, 1841, that is, the same term the judgment was taken, Mr. Tyler consulted" with him about the solvency of Mr. Prentiss, with a view, if he found Prentiss solvent, to recede from a proposition be bad made them to deliver up the note in Warren, if McCar-dle and Prentiss would take up the note in Natchez. He told Tyler that he thought Mr. Prentiss solvent. That at the same term of the court, J. H. Hay, Esq. counsel for Tyler took judgment upon the note in Warren, although both Mr. Prentiss and his counsel stated that the note in Natchez had been then taken up, and that the note in Warren was therefore discharged and. paid. Mr. Hay stated that he acted on written instructions to take the judgment, and did so, accordingly.
    The deposition of W. C. Smedes, proves that he was present at the trial of the suit in Warren, as attorney for Mr. Prentiss, and resisted the judgment on the ground that the suit had been compromised, but in vain. He proves that Tyler had informed him of the agreement with reference to the exchange of notes, either during the then term of the court, or shortly before, and that, though he was a partner of Mr. Prentiss, he had never heard until the time of the trial aforesaid, otherwise.
    This is all the evidence of the complainant.
    For the defendant Tyler, a letter from Mr. Henderson to Isaac H. Hay, proves that, according to the books of the bank, it was on the 2d day of October, 1841, that Prentiss took up Tyler’s note in Natchez.
    Isaac H. Hay proves that he prosecuted the suit in Warren, for Mr. Tyler. That in the summer of 1840, Tyler told him of the proposal to complainant “ to swop notes,” but that by the 1st of January, 1841, he had been instructed by Tyler to withdraw the proposal, and had done so; that he had never had any conversation with Mr. Prentiss, except in court at the trial of the suit, with reference to the notes. He further states that Tyler’s note was not handed to him until November or December, 1841, and then, when so handed to him, he credited the principal and interest upon the judgment.
    O. C. Brooks proves that in May, 1841, S. S. Prentiss had arranged to. take up, and had agreed with the bank at Natchez, to take up the note of Tyler, indorsed by him, and that the execution of the mortgage was the only thing necessary to complete the business. The witness also testified that the proposition of Mr. Tyler had been withdrawn before the May term of the court in 1841, and that at that term the note of Tyler and sureties had not been taken up.
    On this state of fact, the chancellor directed Prentiss and Shannon to be made co-complainants, dismissed the bill as to McCardle, and perpetuated the injunction against the judgment at law, as to Prentiss and Shannon.
    Tyler appealed.
    
      E. S. Fisher, for appellant.
    Í. The complainant, to sustain his bill, must show that he had the note ready tp deliver up to Tyler at the first regular call of the case on the docket. -Has he shown this? There is nothing in all the testimony to countenance the idea, that the note in the Commercial Bank of Natchez was taken up when the judgment was rendered in Warren circuit court.
    2. But we will proceed to notice a more important question, which will dispose of all this testimony in a manner more in accordance with legal principles. The bill as to McCardle was dismissed, the testimony was all taken under the bill as originally filed. Prentiss and Shannon are at the hearing made complainants, as appears by the decree, and the relief which Mc-Cardle sought decreed in their favor. Th¿¡ question, therefore, naturally presents itself, whether anything said or done by Mr. Prentiss can be evidence for him ? The evidence of Mr. Smedes and Mr. Marshall, so far as relevant to the case made by the bill, is nothing more than Mr. P.’s statements, and even those statements do not prove the agreement set out.
    3. The proof is ample that the note was not taken up till September or October, 1841, and the judgment of Tyler was recovered at the April term preceding.
    
      W. C. Smedes, for appellees.
    1. There is nothing in the nature of the contract which the complainant insists upon enforcing, that is in itself inequitable or not entitled to the interposition of .this court.
    We admit it has been held, that payment of part of a debt is in general no legal satisfaction of the remainder, although the creditor agree to receive the smaller s min full discharge of the whole demand, and give a receipt accordingly. Chit. Con. 578; Fitch v. Sutton, 5 East, 232; 11 J. R. 169. This rule is subject to exceptions ; payment before the time ; or in a particular manner not provided for by the original agreement, will be in respect of the new consideration, a satisfaction of the whole debt if so agreed. Chit. Con. 578 ; Thomas v. Heathorn, 2 B. & C. 482 ; Lewis v. Jones, 4 B. & C. 506. So also the receipt of one thing in satisfaction of another is a good payment, as the acceptance of a horse in lieu of a sum of money, or of a bond by a third person in lieu of a prior obligation. Musgrove v. Gibbs, 1 Dallas, 217.
    Any new consideration or additional or different security added to the smaller sum, will make it discharge the greater. Colbourn v. Gould, 1 N. H. R. 279 ; Phi pot v. Briant, 4 Bing. 717; 9 J. R. 333; 1 M. & P. 754; Seymour v. Minium, 17 J. R. 169; Makepeace v. Harvard College, 10 Pick. 301.
    Composition deeds form a large class of exceptions to the rule. They have been fully sustained. Acker v. Phoenix, 4 Paige, 305; Wakeman v. Grover, 4 Paige, 23; Irving v. Humphrey, Hopk. 284 ; Pierpont v. Graham, 4 Wash. C. C. R. 232 ; Jewett v. Woodward, 1 Edw. 195 ; Lentillon v. Schoffat, 1 Edw. 451.
    The case of Acker v. Phoenix, 4 Paige, 305, only decides that a mere agreement to take part of a debt in payment of the whole, could not be enforced in equity unless other consideration was shown; and that a.seal was sufficient consideration.
    The mere compromise of a claim is sufficient consideration for the agreement. Atwood v. --, 1 Russ. 353.
    A prejudice to- the party to whom a promise is made, as well as a benefit to the party making it, is a sufficient consideration to make the promise obligatory. Overstreet v. Phillips, 1 Litt. 120.
    So in a case'not unlike this, in this feature, a contract to receive cotton in payment of a debt at the Charleston price, when delivered at Granby was enforced, by compelling the party to allow that price. Gray v. Todd, 4 Desauss. 399.
    
      A plaintiff to establish his right in equity, need only establish a valuable, not an adequate consideration. Huson’s Administrator v. Pitman, 2 Hay w. 332.
    2. It is argued in Mr. Tyler’s answer, that there was no contract, but a mere voluntary proposition by him. In the case of The Chesapeake and Ohio Canal Company v. The Baltimore and Ohio Railroad Company, it was decided, that a proposition “assented to” or “accepted,” was a contract. It is in full proof that the contract was accepted in this case and carried out,
    3. Mr. Tyler contends that he withdrew his proposition before any action was had under it by the other parties. This is disproved by Mr. Marshall, who swears that at the term of the court at which the judgment was rendered, May, 1841, Mr. Tyler consulted him as to the solvency of Prentiss, with the view of receding from his proposition to McCardle and Prentiss. Mr. Smedes proves that, either during that court, or shortly before, Mr. Tyler had informed him of the pendency of the proposal; and that up to the time of the judgment he had never heard of its withdrawal, and that Mr. Prentiss had continued to act under it. His proposition was then in existence, and full force in May, 1841; and Mr. Prentiss had, by the first of March of that year, made an arrangement with the bank to take up Mr. Tyler’s debt, which Mr. Brooks proves was all completed, except the execution of the mortgage by May, 1841. So that if Mr. Tyler had desired to withdraw, or, to use the technical phrase rescind his contract, he could not legally do so.
    4. It is well settled that one party alone cannot rescind a contract. Skinner v. Dayton, 2 J. C. R. 526; Skinner v. White, 17 Johns. 357; Lawrence v. Dale, 3 J. Ch. R. 23: McNeven v. Livingston, 17 J. R. 437.;
    The last case decides, that, where a party intends to rescind a contract on the ground of violation of it by the other, he must do so promptly and decidedly, on the first intimation of such breach. If he negotiates with the party after, knowledge of the breach, and permits him to proceed in the work, it is a waiver of his right to rescind the contract. 17 J. R. 436.
    Where an executory contract has been entered into, so as to become binding on the parties, both parties have acquired such an interest in its execution, that neither of them can divest the other of his right to have the contract fulfilled. 17 J. R. 357.
    
    A similar case is decided by the chancellor. Pintará v. Martin, 1 S. & M. Ch. R. 126.
    A party having once been entitled to rescind a contract, because it has not been performed in a reasonable time, if he do any act which amounts to an admission of the existence of the contract, he cannot elect afterwards to treat it as void. Brin-ley v. Tibbetts, 7 Greenl. 70 ; Maiuman v. Gillett, 2 Taunt. 325, note a.
    
    A party cannot rescind a contract who has suffered no injury by the failure of the other party to perform sooner, when that party has been guilty of no fraud. Chitty Con. 574, and cases cited.
    Nor can he rescind even in case of fraud or loss, unless he put the other party in the same condition he was in before the contract. Conner v. Henderson, 15 Mass. 320 ; Kimball v. Cunningham, 4 Mass. 502; Turnpike Company v. The Commonwealth, 2 Watts, 433; Borrekins v. Bevan, 3 Rawle, 35; Curcier v. Pennock, 14 S. & R. 51.
    Before a party can rescind a contract for not being performed in a reasonable time, he must demand performance of the other party. Hinde v. Whitehouse, 7 East, 558 ; Noy’s Maxims, 88.
    5. These principles are readily applied, and it is.apparent from their application; 1, that Mr. Tyler could not rescind the contract, proved to be in existence in May, 1841; when McCardle and Prentiss had already in March, 1841, concluded an arrangement so far as the terms were concerned, to carry out and perform the contract; 2, that the pretence of the right to rescind, because the contract was not concluded in reasonable time, is untenable, because Tyler afterwards, that is after his notice given by Mr. Hay prior to January 1, 1841, of his intention to rescind, did things in continuance of, and directly admitting the contract as late as May, 1841.
    6. But Mr. Tyler contends in his answer, arguendo, that “ time was of the essence of this contract.” This is a technical phrase.
    
      Time is of the essence of the contract where the subject of the contract is exposed to daily variation in value. Doloret v. Rothschild, 1 Sim. & Stu. 590; Garnett v. Macon, 6 Call, 308 ; Seymour v. Delaney, 3 Cow. 445.
    Lapse of time in equity is evidence only of the injustice or impolicy of granting relief. Breckenridge v. Churchill, 3 J. J. Mar. 15.
    Lapse of time is permitted, in equity, to defeat an acknowledged right on the ground only of its affording evidence of a presumption that such right has been abandoned. It therefore never prevails where such presumption is outweighed by opposing facts or circumstances. Nelson v. Carrington, 4 Mun. 332.
    Equity is not fond of taking advantage of forfeitures, arising merely from lapse of the time specified, but the contrary. Ibid.
    It is admitted, that in equity laches and neglect are discountenanced ; reasonable diligence is all that is required. Steiger’s Adm’r v. Hillen, 5 Gill & J. 121; 4 Desaus. 198; Drewry v. Barnes, 3 Russ. 94.
    But where time is not of the essence of the contract, it is dispensed with. Brashier v. Gratz, 6 Wheat. 541 ; Getchell v. Jewett, 4 Greenl. 350; Butler v. Oheara, 1 Desaus, 393.
    If the agreement is in substance performed, equity will decree relief. Chever v. Steele, 1 A. K. Mar. 330 ; Hart v. Brand, 1 A. K. Mar. 160 ; Magennis v. Fallon, 1 Moll. 588.
    •These principles have been frequently tested in applications to courts of chancery, to compel a specific performance of contracts for the conveyance of real estate; to the nature of which this case assimilates.
    In such cases, if the vendee, seeking a specific performance, has not the title at the filing of the bill, but acquires it before the decree, or has it at the hearing, the purchaser will be compelled to accept it. Tyre v. Williams, 3 Bibb, 366 ; Pierce v. Nichols, 1 Paige, 244 ; Finley v. Lynch, 2 Bibb, 566 ; Hepburn v. Dunlop, 1 Wheat. 179 ; Cotton v. Ward, 3 Mun. 304, 313; Halls v. Thompson, 1 S. & M. 443.
    The aid of a court of chancery will be given to either party who claims specific performance of a contract, if it appear that in good faith, and in the proper time, he has performed the obligations which devolved upon him. Waits v. Waddle, 6 Peters, 889.
    Where a complainant claims a specific performance, though he has not performed his part, yet if he has performed so much that he cannot be placed in statu quo, it will be decreed him. Breckenridgés Heirs v. Clinkinbeard, 2 Litt. 127.
    
    Mr. Tyler has gained all he desired in this case ; his note is taken up; his uncle discharged, and the delay has not injured him in the slightest degree. Had the note in Natchez been taken up on the identical Wednesday, Mr. Tyler would have been no better, and no worse off than he now is. The delay, even if it existed, cannot be urged in his behalf, since he assented to and admitted the existence of the contract after the longest delay, and that most complained of by him, had passed.
    7. But there was really no delay. Mr. Prentiss, by the 1st March, 1841, had arranged the matter with the bank; they had agreed to his terms, and Mr. Tyler’s note was, in point of fact, then taken up; Mr. McCardle so informed him; Mr. Tyler’s letter exhibited with the bill written March 7,1841, denies the contract, but in May, 1841, he has again renewed it and admits it, but finding from Mr. Marshall, that Mr. Prentiss is solvent, he takes advantage of his suit to take a judgment, and now hopes to reap its fruits. Had Mr. Marshall given a different opinion, the contract would have been closed without difficulty, and the chancellor would never have heard of the case.
    
      W. and W. G. Thompson, for the appellant,
    contended that
    1. The answer of Tyler denied the agreement set up in the bill, by stating that a condition was attached to it not contained in the bill; the answer was therefore evidence, and the complainant must prove it against the answer.
    
      2. The agreement was made in August, 1840; Mr. Hay proves that in that year as attorney for Mr. Tyler he withdrew the proposal ; the other evidence is not sufficient to show a renewal or continuation of the proposition.
    3. From the nature of the proposal it is evident that Tyler’s note was to be taken up at once; even if no time were expressed, a reasonable time would be intended. The proposition was made in August, 1840; nothing definite was done until late in 1841; this was unreasonable delay, and Tyler had a right to withdraw his proposition.
    4. The particular circumstances of each case must be looked to to see if time is of the essence of the contract. Immediate release for himself and sureties was the governing motive in making the proposal. The great delay in accomplishing that end justified Tyler in considering the contract at an end.
    5. This case is not like a contract for a sale of land to which it has been likened by counsel. In such case the party gets substantially what he contracted for, the land; here the object of Tyler was immediate release for himself and sureties. What compensation does he receive for the loss attempted to be imposed upon him I Does he receive substantially what he contracted for, when his debt then in suit is ripened to a judgment and a year has .^lapsed before his own note is taken up, and that when he is ready to enforce the demand due him 7
    
    6. A case of binding contract is not made out: such an agreement will not be enforced for want of consideration. There was no real change in the mode of payment or party paid; ne new security or responsibility.
    7. By the decree of the chancellor, the injunction was dissolved as to McCardle, and perpetuated as to Prentiss & Shannon. Now, it is supposed that the only cases in which a surety can claim a discharge, as.surety, from a debt, are these: where the creditor has released an ample security, or property given by the principal debtor, and where the creditor has, by binding contract with the principal debtor, given him an extension of time on the debt without the consent of the surety, whereby the surety has been deprived, for a time, of his right of recourse on the principal debtor. There is no pretence made here that Tyler has done either one of these acts. Prentiss & Shannon, then, cannot claim relief on the ground of their suretyship for McCardle. The question, which must decide the cause, is the same as to all of them. Did Tyler bind himself, by contract with McCardle, to release his action at law? The chancellor decided correctly, that the judgment should .not be enjoined as to McCardle; and his decision must have rested upon one or the other of these grounds : 1. either that Tyler made an. agreement with McCardle, which was not binding for want of consideration ; or else, 2. that he made no actual agreement, but only offered a proposition, which was not accepted or acted upon as offered, and therefore not binding upon him. Neither McCardle nor Prentiss & Shannon can claim relief except on the ground that Tyler bound himself by a contract with McCardle to release his action at law. The chancellor, in refusing relief to McCardle, decided that he had not so bound himself.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This bill was filed by the appellee, McCardle, to enjoin a judgment at law. The' facts disclosed by the pleadings, seem to be about to the following effect: On the 25£h of September, 1838, Tyler had made his note with- Brooks and Shannon as securities for the sum of $8,800, payable at the Commercial Bank of Natchez, fifteen months after the 2d day of October, 1838. On the 1st day of January, 1839, William H. McCardle, S. S. Prentiss and M. Shannon, made their note to Tyler for $10,000, payable twelve months after date, on which Tyler brought suit in February, 1840. During that year, and whilst the suit was still pending, Tyler proposed to McCardle, that if he would pay the note of Tyler, held by the Commercial Bank, and entirely release said Tyler therefrom, that he, Tyler, would dismiss the suit at law, and release the said McCardle and his sureties, Prentiss and Shannon, from their liability to him on the note on which the suit was pending, which proposition was accepted and agreed to. The note of Tyler was afterwards taken up by Prentiss, but Tyler in the mean time having recovered judgment, refused to enter full satisfaction, but entered a credit on his execution for the amount of the note so taken up by Prentiss, and was pressing his execution to collect the balance.

The contract is admitted by the answer, and also fully established by the proof; but the respondent insists that he ought not to be held bound to perform it, for three reasons; first, that the complainants did not comply within the time intended for performance, or within a reasonable time; second, that respondent withdrew his proposition before complainants had complied with the agreement; and third, that it was not a valid and binding contract.

On- the first point it is contended, that the understanding was that Tyler’s note due the Commercial Bank should be lifted immediately; that the agreement was of such a nature, that time was of the essence of the contract. The agreement was made in 1840, but no time was fixed on for its performance. The note of Tyler was taken up by Prentiss in October, 1841, though it seems probable that he had been negotiating for its liquidation at an earlier period, probably in August, 1841, for on the 27th of that month, Prentiss received a‘letter from the cashier bf the bank, in reply to one dated the 19th, containing a statement of the amount of Tyler’s note and interest. The testimony of witnesses would seem to place the negotiations at even an earlier date, but no definite contract seems to have been made before September, 1841, when Prentiss gave a mortgage to the bank. The judgment of Tyler had been recovered at May term, 1841, of the Warren circuit court, and it was resisted on the ground of the compromise, or at least it was stated at the time, that the matter had been compromised. It seems that Tyler was induced to enter into this arrangement, because he doubted the solvency of the parties, and it is probable that he was induced to abandon it, because he had been informed that the parties were good. But his motives cannot excuse the opposite parties. We have to determine whether they have so complied with their contract as to entitle them to relief. In order that time may be regarded as of the essence of the contract, the .contracting parties must fix upon a time for performance, and thereby indicate that the time of performance was regarded by them as important; or its importance must result from the nature and circumstances of the contract. 2 Story’s Equity Jurisprudence, 100, sec. 776 (and note 1); Jeremy’s Equity, 461. Equity will in general grant relief against a party who gets that for which he contracted, but in doing this, it acts upon the supposition that the parties looked to the substance of the contract, rather than the time of performance. It cannot make different contracts for parties, nor enlarge them beyond proper bounds. Time, in this instance, was only a matter of substance, as it resulted from the nature and circumstances of the contract. The nature of the contract necessarily required that it should be performed whilst the suit was pending. Up to that time, Tyler could dismiss and comply with his contract. . After judgment he could only enter satisfaction, and if the complainants are entitled to relief, it must be given by directing Tyler to do that which he never agreed to do. It seems that the dismissal of the suit was the thing contemplated, and as the agreement was to dismiss on certain terms, the parties seeking relief must be supposed to have contemplated performance before judgment.

This is in the nature of a bill for a specific performance. The agreement was made in 1840, in reference to a suit then pending. Judgment was recovered in May, 1841. In October of that year the complainants took up the note of Tyler. This delay is too great to entitle them to the favorable consideration of a court of equity ; and especially is it so when it is considered that it was a contract to gain a less sum for a greater. They were evidently the parties to be most benefited by the contract, and are therefore least entitled to be indulged. A party cannot obtain a decree for specific performance, without he shows a compliance, or readiness to comply with his part of the contract, and this principle must have its weight in this controversy.

But it seems doubtful whether the note of Tyler was lifted under the original contract, or under a promise made by his counsel at the trial, in accordance with his directions, that the complainants should be credited by the amount. This has been done; and this view of the subject is fortified by the circumstances. This promise, or engagement, was made with Prentiss, who was a surety, and who lifted Tyler’s note. Tyler contracted with McCardle, the principal debtor.

If Tyler had continued to admit the validity and existence of the agreement up to the time of filing the bill, the complainants might still be entitled to relief; but it appears that long before the rendition of judgment, he had, through his attorney, notified McCardle that he should consider the contract as abandoned. And at the trial he refused to admit its existence. We have said that by a fair construction of the contract, the complainants should have performed before judgment. Having failed to do so, at the trial Tyler had a right to elect to put an end to the contract for non-performance, to say nothing of his previous determination, made through his attorney. By pressing the trial, notwithstanding the opposite parties insisting on the agreement, we must understand that the contract was abandoned.

The decree of the chancellor is reversed, and the bill dismissed.

At a'subsequent day of the term the counsel for Tyler moved the court for damages on the amount enjoined at law.

W. and W. G. Thompson, in behalf of the motion, cited and relied on the section of the statute, (How. & Hutch. 514, § 41,) which provides that “ where any injunctions shall be obtained to stay the proceedings on any judgment at law, rendered in any of the courts in this state for money, and such injunction shall be dissolved, wholly or in part, damages as aforesaid, from the time the injunction was awarded until the dissolution, shall be paid to the party on whose behalf the injunction was obtained, on such sum as appears to be due, including the costs.”

The counsel for appellees contended, that the 41st section was to be construed in connection with the 40th section, which was in these words: “No injunction shall be granted to stay an execution of a judgment at law, unless the party applying for'such injunction, or to be benefited thereby, shall first sign and seal a release of errors in such judgment at law, and file the same in the office of the clerk of the court in which such judgment shall have been obtained; and whenever an injunction shall be dissolved, damages, after the rate of six per centum, shall be added to the amount of the judgment; provided, the court be of opinion that the injunction was obtained for delay/’

It was insisted that unless the court was of opinion the injunction was obtained for delay, damages ought to be allowed.

The court overruled the motion, and refused to award. damages.  