
    Graham v. Call, Executor of Means.
    Decided, Feb. 7th, 1817.
    
      i. Specific Execution — Incomplete Agreement for Sale of Land.--If an agreement for sale of land, be made subject to a condition, that the price thereof shall afterwards be ascertained by the parties; and one of the parties die, without, agreeing upon the price; such agreement Is too incomplete and uncertain to be carried into execution by a Court of Equity.
    The controversy in this case turned upon the question, whether a contract for sale of part of a lot in the city of Richmond, by Graham to Means was so complete, and binding on the parties, that a Court of Equity should enforce it on a Bill for specific performance.
    The Bill was filed by Daniel Call executor and devisee in trust of Robert Means, deceased, against John Graham, stating that, on the 12th of October, 1803, the defendant, for the sum of 2001. corren t money, sold to the said Means a specified part of Dot No. 37S, and pul him in possession ; that Means paid the purchase money, and commenced building a house on the lot; that, on the 29th day of March, 1808, the said Graham made a farther sale to him of the residue of the same lot; as by *an account, signed by the parties respectively, would appear; but the price thereof was not extended in the said account, and therefore the plaintiff was compelled to ask a discovery in relation thereto; that the said Robert Means took possession also of the last mentioned piece of ground, and, since his death, the plaintiff had paid the taxes on it; but the defendant had not yet made conveyances for the said pieces of land. The prayer of the Bill, was that the same might be sold agreeably to the directions of the Will of the Testator; that Graham might be ordered to convey them to the purchaser or purchasers; and for general relief.
    The defendant by his answer admitted that he was bound to convey, with special warranty, (averring that such was the agreement,) the first mentioned part of the lot; but, as to Ihe last, contended that no contract was made, as no price was agreed on, nor any mode adopted to fix the price; admitting, as appeared by a. certificate, signed by Means at the foot of the account, as well as by his own entry therein, dated March 29th, 1808, that he had agreed to let him have it; but alleging, as appeared by the same certificate, that the price was to be thereafter agreed on ; which never was done, in consequence of the death of Means in a short time afterwards. The Respondent had no knowledge, nor did he believe that any .possession was ever taken by the Testator, or plaintiff.
    Chancellor Taylor was of opinion that, “notwithstanding the price of the last piece or parcel of the land, in the Bill mentioned, was not fixed in the life time of the plaintiff’s Testator, yet the contract might be carried into effect into a Court of Equity, since the value thereof might be ascertained, if not by the agreement of the parties, by the verdict of a Jury.” He therefore decreed, “that the plaintiff do expose to sale at public auction, for ready money, the two pieces or parcels of land in the Bill mentioned, after giving thirty days notice in one or more of the Richmond newspapers; that the defendant do execute a Deed or Deeds to the purchaser or purchasers for the same with general warranty; that the plaintiff hold the proceeds of the piece or parcel of land, on which no price was fixed as aforesaid, in his hands, subject to the future order of the Court; and that he make a report of his proceedings herein.”
    ^Afterwards, upon a Report accordingly made and approved by the Chancellor, he farther decreed, that a Jury be empanelled before the Hustings Court of the City of Richmond, to ascertain what, on the 29th day of March, 1808, was the value of the said piece of lot, No. 375, sold by the defendant to the plaintiff’s Testator on that day; and, it appearing by the Report aforesaid, that the defendant John Graham was the purchaser at the sale of those parts of the lot, the price of which was not extended as before mentioned, and that the said Graham was to pay 3700 dollars agreeably to his purchase; and the Jury having by their verdict fixed the value of the same, as of the 29th of March, 1808, at 1250 dollars, which, with interest to the day of sale, amounted to 1646 dollars and 45 cents, leaving a balance due from the defendant to the plaintiff of 2053 dollars, and 55 cents, with interest from the day of sale; the Chancellor farther decreed, that the defendant (who had retained the same in his hands with' the consent of the plaintiff) pay to the said plaintiff the said last mentioned sum, with legal interest thereon from the day of sale; and that each party pay the costs of this suit, agreeably to their respective interests in the subject.
    To this decree the defendant obtained a Writ of Supersedeas from a Judge of this Court; assigning error, that the Court of Chancery ought not to have directed an issue to ascertain the value of the parts of Lot No. 375, nor finally to have decreed in favour of the plaintiff as to.the same; but should have dismissed the Bill as it related thereto; because no possession was ever delivered thereof to the plaintiff’s Testator, and nothing was ever done in execution of the agreement; and the said agreement was too vague, incomplete and uncertain, to warrant a specific performance thereof, as the price was not fixed thereby; and the substitution of a Jury to ascertain it was a departure from the agreement, by which the parties reserved to themselves the right of agreeing upon the price. The petitioner,'too, was advised that no inference unfavourable to him ought to be drawn from the sale, and from his purchasing thereat; because it was, after contesting the case, and a decree deciding the question against him; and because, being himself the purchaser, the parties could be put in statu quo.
    *Bouldin, for the Appellant, argued to the same effect, with the petition for the Supersedeas; and cited the following authorities; Bromley v. Jeffries, 2 Vern. 415; Buxton v. Lister, 3 Atk. 386; Mosley v. Virgin, 3 Vesey jr. 184; and Milnes v. Gery, 14 Vesey jr. 407.
    Wickham contra, insisted that the note of the agreement between Graham and Means evidenced a complete agreement, for the sale by the former, and purchase by the latter, for the fair and reasonable price of the property at the date of the contract. And he likened the case to a sale of property upon a fair valuation, or to the common case of a quantum valebat for goods sold: though the price be not agreed on at the time of delivery, yet there is a sale, and the price will be fixed by a Jury. The case cited last for Vesey jr. is not like the present: that case turned on the circumstance, that the parties had provided a specified mode for fixing the price by arbitrators; and the Master of the Rolls expressly says, that the case had been different, if the price had been agreed to be fixed by a fair valuation, without providing any particular mode of making it; and that is substantially the present case. The parties certainly meant to conclude a contract for the sale of the property, leaving the price only at large; and, if so, the price was not to be fixed by the caprice, or pleasure, or iniquity of the vendor, but by his justice; which brings this case within the arbitrium boni viri.
    . William Hay, jr. in reply. The foundation of the argument for the Appellee, is that this is an executed, and not merely an executory contract. Executed, in what way? By delivery of the possession? The answer denies it, and being in this respect responsive to the Bill, and uncontradicted by evidence, (for there is none in the cause,) is conclusive. There is nothing else, which could be said to be done in execution of the contract, but the conveyance, and payment of the purchase money: and it is not pretended that these acts were done. The claims of the Appellee then rest upon the agreement alone; and cannot be supported; as it contains a condition that the price shall be fixed by the parties themselves, precedent to the further execu-' tion of the contract; which condition was not ^performed, and, in consequence of the death of one of them cannot be performed.
    The cases of Milnes v. Gery, 14 Vesey jr. 407, (cited by Mr. Bouldin,) and Blundell v. Bretlargh, 17 Vesey jr. 243, are conclusive authorities, not only that price is an essential part of the contract, but that if the mode, designated by the parties for fixing it, . has failed by accident, a Court of Equity cannot substitute any other. If it did, it would execute no agreement of the parties, but would make one for them. It is said, however, that in Milnes v. Gery, there was a specific mode, but here there is none; that the words,' “hereafter to be agreed upon,’’ mean nothing more than that a fair and just mode should be adopted upon fair and just principles. The admission that there is no mode pointed out for fixing the price, is an answer to the Ap-pellee’s claim; for, price being essential, if it be not fixed, and no mode be designated, by which it can be fixed, the Court cannot substitute one. But the construction, contended for, is surely not the correct one: the words clearly import that the parties themselves are to fix the price. If not; by whom, and in what manner is it to be fixed? It is inconceivable that the contract would have been left vague and uncertain in these respects, if any other mode, than the one we contend for had been intended. If so, this very uncertainty is a bar to the execution.
    There is no analogy (as supposed by Mr. Wickham,) between this case, and the recovery at law upon a quantum valebat for goods sold and delivered. In that case, the contract is executed by the delivery of the goods, and there is an absence of all stipulations as to the price. Here it is executed in no way; and there is a positive stipulation as to price; viz., that it shall be fixed by the parties.
    It may not be universally true, that a Court of Equity will not decree a specific execution in a case, in which damages at law could not be recovered; but, as a general proposition, it is certainly correct. How then would the Appellee stand in a Court of Haw? There is no form of action, by which he could possibly recover. And the Appellant would be equally without remedy. In proceeding upon the express contract, the same obstacle would prevent a recovery on the part of either, as it would be necessary to aver and prove performance of the ^condition, precedent, or that performance was prevented by the other party; neither of which is pretended. Indebitatus assumpsit for the price, on the part of the Appellant, upon the implication of «law, growing out of the execution of the contract, would be out of the question ; for it was not executed.
    
      
      See generally, monographic note on “Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.
      In discussing the requisites of a contract in order to secure specifle performance thereof, the principal case is cited in Litterall v. Jackson, 80 Va. 613; Edichal, etc., Co. v. Columbia, etc., Co., 87 Va. 646, 13 S. E. Rep. 100; Hinchman v. Ballard, 7 W. Va. 186.
    
   February 7th, 1817, JUDGE) ROANE pronounced the Court’s opinion.

The Court is of opinion that, although the Appellant and the Testator of the Ap-pellee had, the one agreed to sell, and the other to buy, the lot in controversy, such agreement was subject to a condition (by the express admission of the last mentioned party, at the foot of the account among ihe proceedings,) that the price thereof was to be thereafter agreed upon by and between the said parties respectively : and the said price having never been so agreed upon by them ; and it being now rendered impossible by the death of the Appellee’s Testator; the Court is of opinion that the said agreement was not so complete and perfected an one, as that it should be carried into execution by a Court of Equity, even if the possession of the said lot had been delivered to the said Testator, in pursuance thereof, which is not shewn to have been done. The Decree is therefore to be reversed, with Costs, and the Bill dismissed, so far as it claims a conveyance of the said lot, and the note taken from the Appellant for the amount of the purchase money thereof, is to be delivered up to him to be cancelled; that the Appellant pay the Costs in the Court of Chancery expended, except those arising from the sale of the lots in the Bill mentioned ; and that the residue of the said Decree is to be affirmed.  