
    Eben. Williams v. H. Champion and E. Goodrich.
    A party having rights under a contract; disclaiming those rights under a mistake as to their character, is not concluded by such disclaimer; nor is he aB'ected if another purchased in consequence, if that other has abandoned the purchase, and does not claim the protection of being an innocent purchaser, without notice.
    Where a purchaser of land has performed in part the terms of the contract, and the failure to perform the residue is occasioned by circumstances which neither party could control, equity will arrange a just compensation, and charge it upon the land sold.
    This cause was adjourned for decision here, from the county of Geauga. It was a bill in chancery, seeking the specific performance of a contract, or compensation in money. The material facts of the case were as follows: In January, 1818, the complainant purchased of the respondent, Champion, six hundred and sixty-six acres of land, at the aggregate price of three thousand five hundred and sixty-two dollars. Payments thus : on demand, one thousand three hundred and eighty-four dollars and seventy-seven cents; on October 1, 1818, seven hundred and twenty-five dollars and seventy-seven cents; on October 1, 1819, seven hundred and twenty-five dollars and seventy-seven cents, and on October 1, 1820, seven hundred and twenty-five dollars and seventy-seven cents, with interest. Within these periods, complainant paid five hundred dollars, and effected sales of part of the land to others, to the amount of three thousand one hundred and ninety-eight dollars and fifty cents, and there remained two hundred and fifty-seven acres of the land unsold. On August 5, 1820, a new contract was made between the parties. In consideration ot the five hundred dollars paid by Williams, Champion agreed to convey to Williams’ son eighty-two acres; he agreed to accept the contracts 170] for the lands sold by Williams, to constitute ^Williams his agent to sell, of the remaining one hundred and seventy-five acres, one hundred at not less than ten dollars per acre, and when the sale was effected, to convey to Williams the remaining seventy-five acres, as compensation for his agency in the whole contract. Williams made continued efforts to effect the sale of the one hundred acres, at the price stipulated, bub could not succeed. In May, 1825, Champion conveyed all the lands and contracts in question to the respondent, Goodrich, who had married Champion’s daughter, as part of her marriage portion, expressly making the transfer subject to the right of Williams. Subsequently, in conversation with Goodrich, Williams admitted he had no right to the land, but claimed compensation in money from Champion. Goodrich sold the land to Tuttle, but no purchase money has been paid, or deed delivered. Tuttle makes no defense, mm
    Hitchcock, E. Whittlesey and Newton, for complainant.
    
      No argument for the respondents.
   By the Court:

The defense that has been relied upon by the respondents, in arguments on the circuit, may be thus stated:

1. Williams abandoned his claim in 1825, by declaring his expectation of compensation, in damages, from Champion.

2. The claim is extinguished by lapse of time.

3. Williams knew of the sale to Tuttle, and neither asserted his claim, nor made other objection.

The contract of 1820 gave Williams a right to demand the conveyance of seventy-five acres, upon completing sales of the residue of the original tracts sold to him in January, 1818. Much the larger portion of these tracts had been then sold, so that Williams had paid the greater portion of the consideration for the seventy-five acres. He continued, up to 1825, assiduous to effect a sale of the residue, upon the terms agreed on ; but he was unsuccessful. At that time, Champion, by conveying to Goodrich, put an end to the contract, and disabled Williams from performing that portion of it that remained unperformed. Williams’ subsequent assertion that he did not look to the land, but to Champion, for damages, we are satisfied was made under a mistake as to what were his rights. Nothing in the case sustains the idea of abandonment. Whilst the contract existed, *he sought to perform it. When [171 the other party put an end to it, Williams still asserted his right under it, though not in the form he now asserts them. There is no pretense to sustain the position of a voluntary abandonment.

Lapse of time never extinguishes the rights of the parties, merely as lapse of time. It does so when a time for doing an act is fixed, and the party to whom it is to be performed forthwith evinces his intention to put an end to the agreement, so soon as the failure to perform at the time fixed has occurred.- In this ease, no time of performance is fixed. Champion himself first put an end to the contract by the conveyance to Goodrich. Williams, at all times previous, was assiduous in his efforts to perform. His conduct evidenced no intention to abandon. Under the contract, Champion had no right to preclude Williams from completing the performance, after having received the benefits of his part performance.

Neither Champion nor Goodrich can place themselves in Tuttle’s shoes. No case of innocent or deceived purchase can be made but by Tuttle, or those claiming under him. Neither make any claim. We find nothing in the whole ease to preclude the complainant from suitable relief.

The mode of administering that relief presents some difficulty; but, in our opinion, it is not insurmountable. The contract between Williams and Champion, as readjusted in 1820, rested) partly, upon a previous part performance by Williams, and partly upon a performance thereafter to be made. That it was not performed is chargeable upon neither. As he has not performed all that he was to perform, the complainant can not equitably demand, a whole performance from the other contracting party. But he may justly claim an apportioned remuneration. To ascertain this, the cause is referred to a master to ascertain what is the fair and ordinary commission for the sale of lands, in like circumstances, in the vicinity of those lands. The sum ascertained to be due to be a charge upon the seventy-five acres of land until paid; in default of which the court will direct a sale.  