
    *Elisha Gibbs v. Reuben Champion.
    Failure to pay a first installment of purchase money, and a tender of the whole when the second became due, specific performance decreed.
    When vendor disables himself from making conveyance, damages may he decreed.
    This cause was adjourned here for decision, from the Supreme Court, in the county of Cuyahoga. It was a bill in equity, praying the specific performance of a contract for the sale and conveyance of a lot of ground in the city of Cleveland. The fact* of the case are as follow:
    
      On May 1, 1825, the complainant agreed to purchase of the respondent the lot in controversy, for the sum of two hundred and fifty dollars — one-half to be paid on January 26, 1826, the other half to be paid on July 26, 1826; for the payment of which sums, he gave to the defendant his two separate negotiable notes; and written contracts were entered into between the parties, by which it was stipulated that the complainant should be entitled to, and come into immediate possession, at which taking possession, he-should pay, or secure the payment of twenty-five dollars, part of the purchase money, and the defendant agreed to convey the lot, upon the payment of the purchase money as it became due, and the complainant covenanted to pay the purchase money as it became due, and also to pay the taxes.
    At the time the contract was made, Champion had not the legal title to the lot; but had a contract with L. Case for the purchase of it, which facts were known to the complainant. Possession was not taken, nor the payment of twenty-five dollars made or secured, in the month of May, 1825, and in the month of July of that year, the respondent addressed a letter to the complainant requesting him to take possession, and declaring that if he failed to do so, he would consider the contract as abandoned. The possession was not taken nor the money secured, neither were any steps taken toward the completion of the contract, by the complainant, until July 26, 1826, when the last payment was due; at which time the whole amount of purchase money and interest was tendered, and a deed demanded. In the meantime, the respondent had sold the lot to another person, whose situation was that of an innocent purchaser without notice. The bill prayed a specific performance, or other proper relief.
    Willey for the complainants, insisted :
    That he had a right to demand a specific performance. That the offer to perform was tantamount to actual performance, and that a failure to perform at the day, was not of itself sufficient to justify the party, or the court, in treating the contract as. abandoned. He also maintained that injury from a delay in performing a contract, was no reason against decreeing a specific performance, where compensation could be made to the other party in money. In support of these doctrines, he cited 1 Fonb. 387, 388; 2 Johns. Cases in Error, 614; 6 Wheat. 528; 1 Wheat. 195, 196; 5 Cranch, 262; 9 Johns. 450, 456; 3 Johns. Ch. 316; Newl. Con. 89; Pow. Con. 268.
    If it be out of the power of the respondent to perform the contract specifically, the court may decree him to make compensation in money, in the nature of damages.
    L. Case, for the defendant, contended:
    That, according to the terms of the contract, the payment of the purchase money, as it became due, was a condition precedent, and the complainant being a defaulter*, in this particular, could not have the relief prayed for.' And he denied the application of the cases cited by complainant’s counsel, to the case before the court. He cited, on this point, 1 Mad. 328, 829; 2 Ohio, 21.
    He controverted the propriety of decreeing damages, in any case, where specific performance could not be decreed, and maintained that this was not a proper case for such a decree, if it could be made in a proper case. He cited 4 Johns. 560; 5 Johns. 195. This was a case of mere speculation, where the complainant wholly failed to perform, where he paid nothing, did nothing, neglected his contract, until an advance in the price of property set him at work. He should, therefore, be left to his remedy at law, not aided in equity.
   By the Court :

This is a very clear case for relief. The conduct of the complainant was not such as to give the slightest reason to suppose he meant to abandon the contract. The covenant to take possession, in May, was intended for the complainant’s benefit; and his failure to do it worked no prejudice to the respondent. The non-payment of the first installment of the purchaser’s money, at the day, seems to be the sole Aground for refusing a performance. The whole purchase money was tendered, when the second and last installment became due, with the interest due on the first. We know no case, where a neglect to pay the first payment, so promptly remedied by a proffer to pay the first and second together, with interest, has been held such a neglect and abandonment of the contract, as to excuse the performance on the part of the vendor. We can not regard the contract to pay a condition precedent, authorizing the rescission of the contract upon a failure. And if we should so consider it, there is no proof that tho respondent proceeded upon this ground. He held the contract and the notes, though payment of the first installment was not made. He never offered to return them, and certainly took •no steps, which could have operated to exonerate the complainant from his liability. The agreement remained executory, and in full force when the tender was made, and the respondent then ought to have executed it. If the title was in him, we should be bound to decree a specific performance. As it is not, but has passed into hands where it can not be reached, we can only decree compensation. This compensation, we are of opinion, is the ■difference between the purchase money, and the value of the unimproved lot, at the time the party entitled himself to a conveyance, •by tendering the purchase money. For the purpose of ascertaining this difference, the cause is remanded back to the Supremo ■Court of Cuyahoga county, and referred to a master to fake an •account upon the principle here suggested.  