
    Decamp against Feay.
    Thursday, September 22.
    Where time admits of compensation as it perhaps where lapse of it arises from the non payment of money at a particular day, it is never an essential part of an agreement.
    An agreement alter non payment on the day stipulated, that if the whole sum a should not be paid at a
    A partywho has a right to obeject tender^ and does object, is not precluded by stance, that objecting*was not ^e“"d sjre on other of the contract.
    On principles of equity, in this State the jury may find damages conditionally, prescribing the terms on which they shall be released ; but it is not competent to the Court, to instruct the jury to find damages sufficient to insure a specific execution of a contract, and that the Court would controul the plaintiff in the use of the verdict.
    In Error.
    ERROR to the Court of Common Pleas of Westmore- ,. j lutld County*
    This was an action of covenant by Feay, who was the plaintiff below, on articles of agreement, dated 17th Ausrust, r . * * i 7~\ ° , _ d 1 1815, by which, Decamp, covenanted to convey to leay, tract of land. By the agreement, Feay was to pay g 4000, that is to say, g 50, on making the agreement; § 450, on tile 16th September, ensuing, and g 1500, on the 1st April, following. As soon as these sums should be paid, Decamp, was to execute a conveyance, and the remaining sum of g 2000, was to be paid by instalments, secured by a mortgage of the premises sold, or approved security. The plaintiff averred performance of the covenants on his part: this was traversed, and formed the only ground of contest in the cause. There was evidence, that the several sums were paid as they fell due, except the g 1500, which became due on the 1st April, 1816, of which, there was g 600 paid on the 3d April, 1816, and the remaining g 900, with interest, was tendered in Bank notes, on the 15th August, following. The .defendant refused to receive it, saying it was not enough, (although the sum was offered to be counted down,) and that “ he would not take that kind of money, as the article called for so many dollars cash, and that was not dollars at J 1 . all.” The plaintiff pressing the defendant to take the money, the latter said, “ I wish I could take it, where is my mage?” The plaintiff said he had received none, and ed four bonds for the residue, to which the defendant objected, on account of their being mispelled and interlined, and the plaintiff then tendered a mortgage : after which, the defendant said, “If I would take that money, would you give ten cent., to make it equal fo Philadelphia money ?” which the plaintiff refused. The defendant observed, he had suffered five hundred dollars damage, in not getting his money in time ; and on this, the plaintiff went away.
    G. W. Bartlett; a witness for the defendant, swore, that on the 3d April, 1816, when the plaintiff tendered the g 600, the defendant refused to take it, saying, it was not the quantity, or quality, he was to have on that payment: that he expected it in specie, which would answer his purpose much better than bank bills: the plaintiff told him to take the g 600, and if he did not pay him up the balance of the g 1500, on Saturday following, (the 6th April,) he would not ask for any of the money back, but he might keep land and money both : and the defendant agreed to take the g 600, on these terms, that if the plaintiff did not pay the balance on the 6th April following, the contract should be void; and the plaintiff agreed.
    The Court below, charged the jury, that “ they held it to be clear law, that there is no other legal money but gold, silver, and copper coin, which has been recognised by the general government. Bank notes, or any other species of paper, are but the representative of money, which neither of the parties to a contract, whose object was lawful money, are bound to accept of, even were it generally considered equal in value. But if good bank notes are tendered, in discharge of a contract, and not objected to at the time, but a'compliance with the contract is declined upon another and different ground; and especially, if the refusal be attended with circumstances of fraud, such a tender is good in equity, and ought, in our Courts, (which, from the want of a chancery, are under the necessity of adopting many of its rules and principles,) to be viewed as valid, in law.”
    That “ the great question is, whether the refusal to take the money, arose from a determination by the defendant, to dissolve the contract, and keep the money he had received. His principal ground of complaint, seems to have proceeded from an alleged disappointment, in having been unable to purchase, or pay for land in Mercer county, of which, no testimony has been given.”
    That «it had been alleged, that the delay was unreasonably long, and put an end to the contract in question. But a principle of this kind can only apply, when the contract is entire. When a compensation can be made for the delay of a partial fulfilment of it, courts of equity, as well as of law, will enforce it. In respect to the parol agreement, as given in testimony by one Bartlett, admitting you fully believe the whole of it, it resembles too much the bond to Shy lock the Jew, for the pound of flesh. It ought not to stand in the way of justice.” That “ in regard to the amount of damages, since the defendant is now unwilling to consider the contract at an end, and also to refund the money, or even to submit it to you or any other, whether the whole or any part of it should be repaid, we do not see how you can consider it as dissolved. Considering it, therefore, as still in force, should you be satisfied of the plaintiff’s right to the present remedy, you may find such a sum in damages, as will compel the defendant to do substantial justice. Should they be amply sufficient for that purpose, we shall endeavour, on our part, to prevent any improper advantage being taken by the plaintiff, of your verdict.”
    
      Coulter and Foster, for the plaintiff in error, contended,
    1. That the plaintiff was bound to prove performance at the time stipulated in the agreement.
    2. That there was a subsequent agreement, to rescind the contract, if payment was not made on the 6th April, and the plaintiff being in default, had precluded himself from calling for damages, or a specific performance.
    3. That the Court erred in instructing the jury, that bank notes were good payment.
    4. That the motives of the defendant, in refusing the tender of bank notes, were out of the question.
    
      5. That the Court erred, in instructing the jury, to give high damages, reserving to the Court to judge of the equity of the case and release them. They cited, 8 Johns. 392. 1 Saund. 320. note 4. 5 Com. 356.
    
    Alexander, and Forward, contra,
    cited, 2 P. Wms. 66. 1 Yeates, 139, 7 Johns. 476. 1 Burr. 457. 5 Co. 115.
    
   The opinion of the Court was delivered by

Gibson J.

I am’clear that it was not in the power of the defendant below to rescind the contract. Where time admits of compensation, as it perhaps always does where lapse of it arises from money not having been paid at a particular day, it is never an essential part of the agreement. Neither do I consider, that the subsequent agreement, by which the parties stipulated, that if the whole sum should not be paid at a certain day, the payment then made should be forfeited, and the original bargain be at an end, gave the defendant any additional right to rescind. Vernon v. Stephens, 2 P. Wms. 66, comes fully up to the case before us: and there the subsequent agreement was not only positive, that in default of payment by a particular day, the articles should be delivered up, but the parties solemnly entered into an order of Court to enforce performance of it: yet the chancellor, on the ground that the agreement and order were in the nature of a penalty, and intended only as a security for payment of the money, relieved against them on payment of principal, interest, and costs; sáying, that where the defendant has received that, he has no fight to complain of having suffered. It is precisely on the same principle that, in other cases, chancery relieves against the exercise of a legal right expressly arising out of a contract; as in the case of a mortgage ; or a right of entry for a forfeiture incurred by non-performance of a covenant in a lease to pay the rent at a particular day ; or against the forfeiture of the deposit by reason of non-payment of the purchase money; or against payment of a higher rate of interest, if the principal be not paid by a particular day. In the present case, too, was felt the same difficulty in raising money, (at least such as the defendant would accept,) arising from its scarcity and the extraordinary pressure of the times, which in Vernon v. Stephens entered into the consideration of the Court. The contract therefore continuing to exist, the principal remaining enquiry is, as to the direction of the Court, on the subject of the tender by Feay. The jury were charged, that a legal tender could be made only in coin: but that if good bank notes were tendered, and not objected to, and especially, if compliance with the contract were declined, (that is, as I understand it, ostensibly declined,) on a different ground; or if the refusal were attended with fraud; such tender would be good in equity : and in that, I entirely concur. But evidence having been given, that Decamp specifically objected to the tender throughout, because it was in bank notes, (and the fact does not seem to have been disputed, although there was reason to believe, his object was, to get rid of the contract,) the jury were instructed, that “ the great question was, whether the refusal to take the money offered, arose from a determination to dissolve the contract, and keep the money received thus plainly intimating, that if the real motive be different from the avowed one, and if the party has, in truth, no objection to the kind of money tendered, but merely uses it as a pretext for objection, with a vLw of getting rid of the bargain, it is in fact a waiver, though he may expressly declare, that he waives nothing r and in that, I can by no means concur. A person for whose benefit any thing is to be done, may, if he please, dispense with any part of it, or circumstance in the mode of performance ; and where he is present to receive performance, whatever is not exacted, is considered as waived: for if objection had been made on the ground of those matters in which the proposed performance was deficient, these might have been supplied at the time ; and therefore you shall not surprise the party who performed the act, by an objection to the mode of performance, after his vigilance has been disarmed by an apparent acquiescence on your part; for that would be a fraud. This is the reason of the rule, and the whole extent of it: for if the party expressly refuses to dispense with any thing, and induces no misapprehension of the state of his intention, his motives for doing so, or the object he expects to accomplish by it, cannot be enquired into; nor can it be left to the jury to presume, contrary to the truth of the fact, that he did dispense with any thing. The right of a person to have a tender of imperfect performance considered as valid, arises from his having been, by the silence of the opposite party, deceived into the belief, that nothing further was required ; but where there is no allegation of misapprehension, by what right can the person making the tender enter into-the motive of a party actually objecting, and say, your dislike to the mode of performance is all affectation, and you are therefore bound to withdraw your objection ? To this, no matter what, or how unconscionable, the motive may be, he might openly reply, “ I only exercise a right I reserved by the contract, and although your notes could answer my ends as well as specie, yet for the purpose of defeating the contract altogether, I require payment in coin, because I know you cannot procure it.” The question then being, not, what ought the party to have dispensed with, but, what did he dispense with : his right to object, and his motive for exercis- ’ ing it, stand on very different ground: and the Court therefore put to the jury, as the turning point of the cause, what ought to have been entirely excluded from their consideration. Thére is also an exception to that part of the charge respecting the damages, in which the jury were instructed, that they might find such a sum as would ensure a specific execution of the contract; and that the Court would endeavour, on their part, to prevent the plaintiff from taking any improper advantage of the verdict. If the jury had at the same time been instructed, to find the damages conditionally, they themselves prescribing the terms on which they should be released, all would have been well enough; for, with us, this mode of effecting an equitable object is, from necessity, frequently resorted to. Bat the terms and conditions are to be fixed by the jury; for if damages are given absolutely, and as a measured compensation proportioned to the extent of the injury, I know not how the Court can say, they were given conditionally, and, on that ground, withhold the execution. To assess damages, is the exclusive business of the jury; who, if they assess them conditionally, should also render their verdict conditionally: for it would be an improper delegation of power, to authorise the Court to say, how far, or on what terms, compensation was made for an injury suffered; and in the case before us, the Charge plainly pointed at a discretion to be reserved to the Court. We are, therefore, of opinion that the judgment be reversed.

Judgment reversed, and a venire facias de novo awarded.  