
    Marshall vs. Craig.
    
      May 27th.
    No set form ot worás *te cove! mint,
    Anf words which'ftiew^e paute to a deed, have concurred and assented to the performance, or forbearance, of a future act*
    
      Present, all the Judges.
   OPINION- of the Court, by

Judge Bibb.

— In covenant, Craig set forth, that by articles of agreement made on the 20th of October 1803, between Marshall and himself, it was witnessed, that the plaintiff sold to the defendant, a certain parcel of land which he had purchased out of a claim of Charles Pelham, which land was also covered by two other claims, viz. of John Craig, and of Hezekiah Briscoe, heir of John Briscoe, all of which, the involved and involving claims, the said plaintiff on his part engaged to unite, and sold to the defendant to a certain extent, reserving certain parcels as therein expressed : that the defendant covenanted to pay for the lands so sold, at the rate of twelve and an half dollars per acre, in manner and in portions therein set forth ; that the plaintiff agreed, upon the execution of the articles, to assign to the defendant, Pe-1-ham5s bond for that part of his claim which the plaintiff had already purchased ; and the defendant agreed to make certain payments as set forth ; that the defendant farther covenanted, when the plaintiff should have secured and conveyed to the defendant, the right of John Craig to the land so sold, the defendant would make other payments, in manner set forth, so as in the whole to make up, with the payments before stipulated, two. thirds of the whole sum the defendant contracted to give for the land : and the defendant farther covenanted, that when the plaintiff should have secured the right of Briscoe, “ in whosoever hands the same should be,” and should convey the same to the defendant, that then the defendant would pay the balance in manner set forth, &e. “ And it was farther agreed upon, that whenever the plaintiff would give credit to the defendant for the whole or any part of the sum which was attached to the conveyance of said Briscoe’s right as mentioned in the said contract, and at the same time would relinquish to him, the said defendant, his pre-emptive right, as by the said contract established, to purchase of the said Briscoe, or other person holding the right of the said Briscoe to the lands, thereby and therein sold to the said defendant, (describing particularly the part to which the said pre-emptive right is relinquished) he the said plaintiff, should be at liberty so to do : and that the said defendant would on his part accept such credit and relinquishment as a discharge of the plaintiff from his obligation to purchase the right of the said Briscoe, to the part so relinquished ; or if the said plaintiff should not secure and convey the aforesaid right of the said John Craig--within-— years from the date of the said agreement, the said defendant should then be at full liberty to purchase both or either of the aforesaid rights of the aforesaid John Craig, or Hezekiah Briscoe, in whosoever’s hands they may be, and that on his own account, and not for the benefit of the said Rewis Craig; and whose obligation to purchase or otherwise secure and convey to the defendant the right of the said John Craig to the land therein sold, should in no manner be impaired.”

If the cove-nantee is the cause why the covenantor can. not perform his covenant, he is «xcufed, and money contracted to be paid him for performance, becomes due as if he had actually performed.

The plaintiff then averred, he had well and truly kept the covenants on his part ; that he did assign to the defendant on the day of the date of said covenant, said Pelham’s bond, &c. ; that he did afterwards secure the lands as aforesaid sold, &c. ; and afterwards, to wit, on the-- day, &c. conveyed the said right to the defendant : that he would likewise have secured and conveyed the right of the said Briscoe, within the period limited, but the defendant obstructed and prevented the plaintiff from carrying the said stipulation into effect u by purchasing himself, and for his own benefit, within the said period, to wit, on the . ■ day of ——— the right of him the said Briscoe, in the land so sold by the said plaintiff to the said defendant ; and then assigns the breach generally, and also particularly, in this, that the defendant on the -- day of August 1801, at, See. did purchase for himself, and not for the benefit of him the said plaintiff, the right of said Briscoe to the land so sold by the plaintiff to him the said defendant, in violation of the pre-emptive right secured to the plaintiff; and that the defendant had failed and refused to make payment of the amount of the purchase money for the tract of land so sold to him as aforesaid by the plaintiff, in the manner and payments by the said covenant stipulated, although often requested, &c. and particularly on, &c. ; but that the said defendant unjustly, and in violation of the said contract, withholds and refuses payment of the one third of the amount of the price of said land, upon the unjust and ill founded pretence, that the plaintiff has not yet acquired the right of the said Briscoe to the said premises.”

To this the defendant pleaded covenants performed, after oyer of the declaration and covenant; on which plea an issue was joined to the country.

The defendant pleaded secondly ; protesting, that the plaintiff had not kept and performed his covenants; and farther protesting, that the said plaintiff would not have purchased said Briscoe’s right, within the period limited, had not the defendant purchased it himself ; and farther protesting, that the purchase of said Briscoe’s claim was not in violation of his agreement, nor for the defendant’s benefit, but for the benefit of the plaintiff ; that he had purchased said Briscoe’s right for the benefit of the plaintiff", at 875 dollars, out of his own effects ⅛ that he placed the purchase to the credit of the plaintiff on the said covenant, at the sum of 1375 dollars, and charged him only with the sum of 875 dollars, making a profit to the defendant of 500 dollars ; avers that the land in the covenant mentioned was by actual survey 330 acres, as sold to the defendant; that he hath well and truly paid the plaintiff, the sum of 3250 dollars, which, added to the 875 dollars paid for Briscoe’s claim, makes the whole amount of the purchase money at 12 1-2 dollars per acre ; wherefore he saith he hath well and truly kept and performed his covenants according to the true meaning and obligations thereof, &c. : to this the plaintiff put in a general demurrer, in which the defendant joined ; and upon this the court gave judgment in favor of the demurrant.

A jury were sworn to try the other issue, and found in favor of the plaintiff, whose damages they assessed at £. 351 12s.

In the progress of the trial, the defendant took a bill of exception to the opinion of the court, in overruling his objection to a question asked by the plaintiff, of a witness.

The defendant moved for a new trial, which was overruled, to which he likewise took a bill of exceptions, certified as containing the whole of the evidence ; and thereupon judgment was given in favor of the plaintiff, for the damages by the jurors assessed; from which the defendant appealed.

The assignments of error may be considered as in» volving four questions.

1st. The sufficiency of the breach of covenant in the declaration assigned.

2d. The sufficiency of the defendant’s second plea.

3d. The correctness of the opinion of the court on the objection to the question propounded to the witness.

4th. The propriety of overruling the motion for a new trial,

The objection to the breach assigned was argued in two divisions, the one, that it was not within the covenants on the part of the appellant or either of them, the other, that the plaintiff had declared for the contract price of the land, as though he had performed his covenants, whereas he had admitted anon performance, but for the purchase of Briscoe’s claim made by the defendant, wherefore the plaintiff should have gone for the damages to him resulting from the said purchase so made.

It is well supported by authorities, that the law requires no set form of words to create a covenant, and for that purpose any words will be effectual, which shew that the parties to a deed have concurred and assented to the performance, or forbearance of a future act. As if the lessee covenants to make repairs, provided always, and it is agreed, that the lessor shall find timber 5 this makes a covenant on the part of the lessor, to find timber ; and it shall not be considered as a bare qualification of the lessee’s covenant, but shall entitle the lessee to his action of covenant in case of a failure. If A. leases to B. upon condition that he shall acquit the lessor of charges, and leave the premises at the end of the term in as good plight as he found them, if he doth not leave them so repaired, an action of covenant lies. So in the case before us, when the parties have said “ it was farther agreed,”, that the plaintiff should be at liberty to relinquish his pre-emptive right, as by the said contract established., to purchase of the said Briscoe, or other person holding the right of the said Briscoe, &c. or if the said plaintiff should not secure and convey the right of said John Craig within a limited time, that then the said defendant should be at liberty to purchase either the right of said Briscoe, or of said Craig, in whose hands soever they might be. These expressions shew a clear assent and agreement on the part of the appellant, that the appellee hath the pre-emptive right spoken of, and amounts to a covenant that the appellant shall not purchase within the time limited, or during the continuance of the appellee’s pre-emptive right. And from those expressions, as well as from the other express and, explicit terms used in the agreement, a covenant was obligatory on the part of the appellee to purchase Bris-coe’s right and secure it to the appellant, If the appellant has therefore violated this covenant on his part, what is the result to the appellee ? Not imaginary and assessable damages only for this breach, but the appel-lee might well declare for such damages, as well as to have a performance of the defendant’s covenant, in the same manner as if he had performed the act which the appellant hath by his own wrongful act put beyond the power of the said plaintiff to perform. The appellee sold the land at a stipulated price, one third whereof was attached to the covenant for securing Briscoe’s claim upon it, as a precedent condition ; now shall it be said that when the appellant hath, against his covenant* put it out of the power of the appellee to perform the condition precedent, that therefore the third part of the price shall be lost to him ? The law as well as the plain intent of the parties, saith, for that the appellant is the cause why the condition precedent cannot be performed, therefore the covenantor is excused, and the duty flowing from the appellant to the appellee, must attach. Herewith agrees the principles laid down in Coie Lit. fol. 210, b — Shepherd’s Touchstone, title obligations. We conceive therefore that the breach is well assigned, within the covenant, and that the plaintiff had a right to go for the contract price, depending on, and attached to Briscoe’s claim.

Upon the second question, we have no difficulty in saying that the judgment of the court in favor of the demurrant was correct. Upon the facts set forth in the plea itself, (waiving all objection to the form and argumentation of it since the plaintiff demurred generally) the defendant hath distinctly admitted a good cause of action in the plaintiff for 875 dollars. He doth not by the plea, assert that he purchased Briscoe’s claim with the assent or authority of the plaintiff. His purchase of Briscoe’s claim against the covenant on his part, gave him no claim to have a deduction out of the price contracted for between Craig and himself. The appellant ought not to be permitted thus to evade and elude his covenant not to buy within a limited time. He cannot derive authority from the covenant, as agent for Craig, when so far from a delegation of it there is a plain covenant on his part not to intermeddle. Craig has made no express promise to pay the sum so advanced, and it is plain the law will not imply one in favor of an advance made, not at the special instance and request of the party to be charged, but against the covenant of the party claiming the advance.

, The third question relates to a bill of exceptions taken by the defendant to the opinion of the court in overruling an objection which he made, because the “ plaintiff was about to inquire of the witness, who was the agent of Briscoe, how much he had sold that claim to Jackson for.” As neither the answer of the witness to the question, nor any other part of his, or the other testimony in the cause is stated in this bill of exceptions, the point is too insulated and abstract to require an opinion. But if this bill of exceptions is taken in connection with the testimony of the same agent, and the other evidence stated in the bill of exceptions upon the motion for a new trial; then indeed, it appears that the question and response was pertinent and proper, because the whole evidence conduces to prove a connection between the appellant and Jackson in the purchase ; that the price given for Briscoe’s claim, to 700 acres, including the land sold by the appellee, was more than, remunerated by the immediate and consequent assignment of bonds to said Jackson and thé appellant, which, bonds were appendant to said Briscoe’s claim, amounting to £. 190, taken for town lots, composing not more than 300 of the 700 acres, and that the price given for the whole claim of Briscoe, including those bonds, was only about 550 dollars.

Upon the fourth point, little remains to be said after the opinions of the court on the second and first points. The motion for a new trial appears to have been one of those irregular indulgences, too frequently granted by courts, in hearing the motion upon the -whole case, without any distinct statement of the grounds upon which it was moved.

The bill of exceptions presents a case not so favorable for the appellant as his second plea. To the declaration charging him. with a breach of his covenant, whereby the plaintiff’s right to have the alternative, to wit, a payment in bonds and notes of one third part of the contract price of the land, %nd assigning breach in non payment, &c. the appellant had pleaded the affirmative plea of covenants performed; he offered no evidence as to the payment of 875 dollars, and interest, for which sutn the jury rendered their assessment of damai ges, (as in the sixth assignment is averred) and upon the issue and evidence, that seems to have been the proper criterion of damages. Wherefore it seems to the court, that there is no error in the proceedings as the appellant hath complained. — —Judgment affirmed.

Oct. 24th 1809.

The appellant presented a petition for a re-hearing, and afterwards, on the 24th of October 1809, the following opinion was delivered by Bibb, then Chief Justice.

Marshall vs. Craig, upon a reconsideration.

OPINION of the Court, by

Ch. J. Bibb.

— Next to the doing of right, and a consciousness to have faithfully fulfilled those solemn obligations by which we are bound to justice and the laws, we hold in estimation the administration of justice to the satisfaction of the public. That in every controversy both parties should depart satisfied, however devoutly to be wished, however consoling to a mind of sensibility, is, nevertheless, a picture too flattering to be believed, too unlike the mildest features of justice to be indulged. To arrest and enchain the public as well as each individual opinion, and secure their willing assent to a judicial decision, is worth endeavoring, though beyond attainment, perhaps, in the present condition of man. Having in view the ends proposed in the establishment of a government of laws, the court have considered and reconsidered the points in controversy between these parties ; it is their duty to state the final result, and the principles upon which they have decided.

The case, stript of the forms of pleadings and the minutiae of evidence, is concisely this :

Craig sold to Marshall a certain tract of land, the complete title to which involved the relative merits of certain claims, called Craig’s, Pelham’s and Briscoe’s. These claims Craig covenanted to unite, the two former absolutely, the latter sub modo ; and sold them, to a certain extent, to Marshall, that is to say, to the extent of 330 acres, at the price of twelve and a half dollars per acre. Marshall, on his part, as an inducement and consideration of the covenant on the part of Craig, stipulated to pay one third of the purchase money on the transfer of Craig’s claims, one third on the transfer of Pelham’s claim, the other third was to abide the transfer of Bris-coe’s claim, on such election as Craig should make under the modifications of his covenant respecting that claim. Marshall farther covenanted that Craig should have the pre-emptive right of Briscoe’s claim for “ — years.” It was farther stipulated between the parties, that if Craig did not use his said pre-emptive right and secure Briscoe’s claim within the term limited, that then Marshall should be at liberty to purchase the said Bris-coe’s claim,. “ and that on his own account, and not for the benefit of the said Lewis Craig.” It is admitted in the pleadings and in argument that Craig did transfer the rights of Craig and of Pelham, nor is it a point controverted but that Marshall did, shortly after the date of the covenant, interfere and acquire to himself the claim of Briscoe, at least so far as it overhangs the 330 acres aforesaid ; and it is admitted that Marshall has paid the price of twelve and a half dollars per acre, except the sum which he alleges was paid by him for Briscoe’s claim.

By reference to the former opinion of the court a more minute statement of the contract will be seen, but this is deemed sufficient to bring into full view the main questions in. the cause.

The first question to be considered is, shall Craig be bound to allow Marshall the price he may have paid for Briscoe’s claim, admitting that price to be far less than the portion of the purchase money suspended and dependent upon Craig’s covenant to unite that claim to the others? It is not pretended that Marshall purchased Briscoe’s claim at the instance or request of Craig — that he derived no authority to do so from the contract is clear. It is therein declared that a pre-emptive right'is established in Craig. The contract also.provides a period at which Marshall should be at liberty to purchase. The expression of that period or event carries along with it the exclusion of a purchase by Marshall at a prior period or on a prior event. The maxim may here well apply, expressio unius, est. exclmio alterius„. B,ut the terms in which the covenant, upon this subject, is penned, silences all claim of authority for Marshall to purchase within that period, even for the benefit of Craig: for the draftsman seems t® have had in mind the rule of equity, that the vendee of an estate shall nee purchase up an adversary claim to defeat his first purchase, or if he does, that it shall, at the election of the first vendor, enure to his benefit upon paying the price of the second purchase. Lest the permission to Mar* shall, when the contingency should happen, might ever, then be construed as a bare permission to purchase for the benefit of Craig, he adds, “ and that for his own be - nefit, and not for the benefit of Craig.” Of what use will the reservation of a pre-emptive right be to Craig if, within the period limited, Marshall may interfere, and drive him either to pay the price which Marshall pays; for Briscoe’s claim, or abandon his claim for the third of the price of the land sold l It is said he may su e upon that breach of covenant only, and have appropriate damages assessed. But what damages has he sustained ? If he cannot claim this breach on the part of Marshall as entitling him to demand payment of that part of the consideration which had been postponed for Briscoe’s claim, then he has sustained damage, by Marshall’s purchase, equal to the difference between the sum suspended and such a contract as Craig might have made but for Marshall’s intermeddling. But if Mar-, shall is to be allowed what he paid, before Craig can save himself from his covenant to purchase Briscoe’s claim, and thereby demand the payment as upon a compliance with his covenant, yet it follows that Craig has, sustained damage equal to the difference between what his own contract might have been, and that which he must allow Marshall. But how can a jury try what might have been if a previous event had not happened. Craig contracted to have a certain time for making an experiment of his own means of securing Briscoe’s claim ; Marshall has prevented this experiment, and would now refer it to the book of possibilities. Craig might have induced a surrender of Briscoe’s claim as of inferior dignity, and ineffectual against the other claims he sold to Marshall; he might have purchased, it for a cent, or made as good a bargain as Jackson did. Craig was induced to postpone the payment of a large portion of the purchase money until he should secure Briscoe’s claim ; Marshall covenanted that Craig should have the pre-emptive right of that claim for a certain time; could either party have expected, if good faith was observed, that within the period Marshall, by his, purchase of Briscoe’s claim, could compel Craig (to entitle himself to the contract price of the land) either to allow the price paid for Briscoe’s claim, or else, to prove in a court of justice what contract might have been conceived and brought forth by the womb of Time if Marshall had not broken his covenant? Such.an issue in a court of justice would be ridiculous. As Marshall paid the money for Briscoe’s claim against th* consent of Craig, and against the stipulations of the covenant, it is clear the law raises no assumpsit from Craig to Marshall on that account.

This question being settled, a second is to be considered. Upon the transfer of Craig’s and Pelham’s* claims to Marshall, and the purchase made by Marshall himself of Briscoe’s claim in violation of Craig’s preemptive right, had Craig a right to demand and have of Marshall the contract price of the land, in the same manner as if Craig had performed his covenant to purchase and secure Briscoe’s claim ?

So long as the covenant to purchase Briscoe’s claim was obligatory on Craig, it is clear he could not demand payment of that part of the contract price’of the land which was dependent on his performance of that previous condition. But so soon as Craig was discharged from that obligation or previous condition, by performance, or any other act equivalent to performance or a discharge of that obligation, he became entitled to have payment, unless the act which discharged Craig’s obligation to purchase, did also discharge Marshall’s obligation t® pay. It seems equally clear that Marshall, by no wrongful act of his own, apart from the assent or concurrence of Craig, could discharge Marshall from his obligation, But his purchase of Briscoe’s claim was a wrongful act of his own, and without the assent or concurrence of Craig ; therefore, the solution of the question depends on the effect of Marshall’s wrongful act upon Craig’s obligation to purchase Briscoe’s claim. That the purchase made by-Marshall himself is a perpetual bar of his right against Craig upon that obligation, and operates as a total discharge of Craig, seems to follow from settled principles of the common law. If the condition of an obligation consist pf two parts in the disjunctive, or be to do one of two things before or at a day certain, and boti& the things be possible at the time of making the obligation, and before the time of performance one of th& things is become impossible to be done by the act of the obligee himself, in this case the obligation is discharged for ever. So if the condition be that the obli-gor shall marry A. before Easter, or pay £. 20 to the obligee at Michaelmas, and before Easter the obligee marry A. himself, and the marriage doth continue between them until Easter be past, in this case the obligation is gone and discharged for ever. So if the obligation be to do one thing only, and that thing be possible at the time, but afterwards, and before the time when it as to be performed, it doth become impossible by tha act of the obligee, in this case also the obligation is discharged for ever — See Shepherd’s Touch, p. 393-4. If a man make a feoffment in fee, upon condition that the feoffee shall reinfeoff him before such a day, and before the day the feoffor disseise the feoffee and hold him out by force until the day be past, the estate of the feoffee is absolute; far the feoffor is the cause wherefore the condition cannot be performed, and therefore shall never take advantage for the non performance thereof. So if A. be bound in a bond that I. S. shall marry I. C. before such a day, and before the day B, the obligee, marry her himself, he shall never take advantage of the bond, for that he himself is the meane that the condition could not bs performed — -Coke Litt. 206 b — •“ and this is regularly true in all cases,” saith that great lawyer. See, also, Coke Litt. 207, a, and Butler’s Notes upon Coke (same fol.) 1,2, and Coke Litt. 209-10, b. If he who is to be benefited by another’s fulfilling his contract or agreement is the occasion why it is not carried into execution, the contract is thereby dissolved, and the party bound discharged from his obligation — (Powell on Contracts, p. 417-18-19 see the cases there put and the authorities cited.) After citing various cases and examples of discharge by the act of the obligee, the author adds, “ and in such cases, the party bound to performance will be in the same condition as if the agreement had been fulfilled by him” — ' “ for if he whom it concerns to have my part of the covenant fulfilled is the occasion why it is not, it is the same thing to me as if it were fulfilled.” — " So where ⅞ carpenter covenanted to build a house for another on his land for £. 10, and came prepared so to do, but was ordered by him to desist, the carpenter, after such command to desist, might have maintained an action for the £. 10. — Powell 420. It would be tedious to set forth the various exemplifications of this doctrine as contained in the books : the authors referred to, and examples quoted, seem decisive on the question before us.

The appellee had sold his land, and yielded possession, under a contract for the payment of twelve and a half dollars per acre; he came under a condition to the appellant to purchase Briscoe’s claim to it, or not demand a sum agreed upon if he did not purchase within a time agreed upon : the appellant, on his part, came under an obligation not to purchase Briscoe’s claim within that time ; but he has purchased, and upon the most cogent reason, as is said in argument. Then the same reason which compelled him to purchase must compel him to submit to the consequences of the purchase, and pay the sum which has become due in consequence of the discharge of Craig's obligation to purchase. This doctrine is not a mere technical, positive’ rule of the common law ; it is a rule of reason and natural justice, essential to the due preservation of faith in contracts. It is not confined to the doctrine of the common law of England, or of our own state, but is acknowledged by-civilians as a correct rule of enlarged and liberal juris-prudenee. And, according to this doctrine, we are furnished with several apt quotations from the civil law by Pothier, in his “ Treatise on Obligations considered in a moral and legal point of view,” p. 127, of which we select the following: “ Pro impleta habetur conditio, cum per eum fiat, qui, si impleta esset debiturus essetP “ It is (says Pothier) a rule common to all the conditions of obligations, that they ought to be holden to be performed when the debtor, who has obliged himself under the condition, has prevented its performance.” Marshall had obliged himself to pay a sum of money, under a condition that Craig should, before a certain time, purchase and secure to him Briscoe’s claim ; but Marshall has prevented the performance of the condition by purchasing it himself within the time limitted; therefore, the condition ought be holden as performed.

The third question is, ought the court to have granted a new trial on the application of Marshall ? The jury found the balance due of the contract price with interést; they found no more than what is indisputably due, according to the solutions of the first and second questions.

But it has been strongly relied upon in argument that the circuit court erred in permitting Briscoe’s agent to detail to the jury what price Jackson gave for Bris-coe’s claim. This objection must be predicated upon three propositions, or upon some one or more of them. 1st. That the breach assigned by the declaration went for the contract price only. 2d. That there was no connection between Marshall and Jackson in the purchase made of Briscoe’s claim. 3d. That the recital, in the agreement of Jackson and Marshall respecting that purchase, of an allowance to Jackson at the rate of 15s. per acre for so much as Marshall was to have by the agreement, was conclusive evidence of what Marshall paid for it. A short attention, candidly bestowed upon the declaration and the evidence, will show that these propositions cannot be maintained. The declaration, after setting forth the covenants, and making a foundation of action for the contract price, then assigns a breach by the violation of the pre-emptive right of Craig, covenanted for by Marshall; and “likewise” in the failure to pay the amount of the purchase money. Upon the first breach assigned, the appellee might have insisted before the jury for such additional damages as he had sustained (over and above the non payment of the contract price) by the violation of his pre-emptive right. The articles of agreement between Jackson and Marshall, bearing date but the day after the covenants between the appellant and appellee, shew a connection between Marshall and Jackson in the subsequent purchase made by Jackson of Briscoe’s agent ; through the medium of this agreement and Jackson’s subsequent purchase Marshall became part owner of Briscoe’s claim. To what extent, is therein precisely ascertained by reference to claims and boundaries, not to be understood without an intimate acquaintance with them, or a plat and connexion of the claims and objects alluded to. •Moreover, the contract is not for the purchase of s© touch of Briscoe’s claim solely arid individually at ISs. per acre, but is a complicated agreement of division, sale and exchange, which might very properly be left to the jury, in connection with Jackson’s subsequent purchase, &c. for them to consider whether the price of ISs. per acre, stipulated by Marshall, Was not nominal, and what benefit resulted from the whole contracts with Jackson and Briscoe, by which Marshall had thus broken his covenant with Craig. But it has been supposed, in the petition and argument, that such evidence might have poisoned the minds of the jurors, and that it has had some effect upon the deliberations of this court» The jurors may have set off the damages upon the violation of Craig’s pre-emptive right against the price paid by Marshall for Briscoe’s claim : farther than that, they have not been influenced by the testimony objected to, however legal and proper. They have found in damages only the balance due of the contract price, with interest; less than that they could not legally have found, whatever price Marshall or Jackson may have paid for Briscoe’s claim. This court have founded their opinion on the main questions, upon facts never controverted in the cause, but admitted in the pleadings, assignments of error, petition for reconsideration, and argument. They have drawn conclusions of law different from those advanced by the appellant and his counsel. So far as the evidence was necessarily connected with the bill of exceptions and assignments of error, we have looked into it for the purpose of giving a decision upon those points. No fact necessary to support the verdict of the jury to the extent of damages assessed being controverted, we can see no cause for a new trial: nor have we any cause to change the former judgment of this court.

'We have to regret, that in a matter which now appears to be plainly his right, the appellee has been delayed since the first argument of the cause in the fall term 1808 until the present. The delay has been produced, in a great degree, by the multiplicity of suits, and, in some degree, by a desire to look into books which could not be readily obtained. We have waited for that conscious assurance in adjudication, which is superier to every gratification a vain reputation for intuition and rapid decision could bestow.

Oct. 8th 1812.

The rules of decision in court of law and courts of equity are the same.

Upon the premises, it is considered by this court that the former judgment of this court stand unaltered and affirmed,

Marshall exhibited his bill in chancery for relief, which, upon hearing, was dismissed ; and, upon an appeal, the cause was decided on the 8th of Oct. 1812, by Boyce, chief justice, Wallace, Logan and Ows-ley, judges. The opinion of the court, by Boyle, chief justice, is as follows.

Marshall vs. Craig.

Craig having brought an action of covenant against Marshall, andrecovered judgment, which,on an appeal to this court was affirmed ; Marshall filed his bill in chancery, and obtained an injunction : and upon a final hearing, the bill being dismissed and the injunction dissolved, Marshall has again appealed to this court. The material facts which formed the basis of the adjudication in the action at law, are essentially the same as those which are presented by the case now before the court ; and to avoid repetition, the statement of the facts in the opinion then delivered is referred to.

The main question therefore is, whether these facts, though not constituting a defence at law, afford ground for relief in equity, The fairness of the contract is not impeached, nor can its object, so far as it was intended to secure to Craig for a limited time the right of a preference in the purchase of the outstanding title of Bris-coe to the land sold by Craig to Marshall, be considered either illegal or immoral. In the action at law which was brought to recover the one third of the price of the land, which by the agreement was payable only upon the event of Craig’s purchasing and transferring to Marshall Briscoe’s claim ; it was necessary for Craig to shew, either that he had purchased and transferred Briscoe’s claim, or some legal excuse for not having dene it. That he had not done so, was alleged and admitted in the pleadings, and the excuse offered was, that Marshall, the next day after the agreement between him and Craig, had, in violation of that agreement, contracted for the purchase of Briscoe’s claim from one Jackson, who alleged he had it in his option ; and ah terwards, within the time in which by the agreement Craig had the pre-emptive right, received a conveyance from Jackson, who in the mean time had completed his purchase from Briscoe. This excuse, which in point of fact is incontrovertibly true, was deemed, in point of law, sufficient to entitle Craig to recover, upon the general principle that wherever a man by doing a previous act, would acquire a right, if owing to the conduct oí the other party he is prevented from doing it, he acquires the right as completely as if it had been actually done.

The correctness of this principle is abundantly established by the authorities cited in the opinion delivered by this court in the action at law, and its application to the case most forcibly and conclusively illustrated ; that it cannot be less operative in a court of equity than in a court of law is obvious. The same rules of decision govern both courts ; the former cannot any more than the latter decide in opposition to legal principles, in a case to which those principles are applicable ; to do so would be ah assumption of an arbitrary discretion, as pernicious to the best interest of the community, as it is contrary to the fundamental principles of our government. Even those rules of law which in their nature are technical and positive, cannot be disregarded by a court of equity- — See 3 Black. Com. 432, &c. But the principle which denies to a party who prevents a thing from being done, the right to avail himself of the non performance he has occasioned, is not a mere technical rule of the common law, but is founded upon the basis of moral equity, and is essential to the preservation of good faith i(n the intercourse of society. If a party, by preventing an act from being done, upon the doing of which he had stipulated for the performance of some duty, would be relieved from his obliga-lion to perform such duty, it must easily be perceived that those who might be disposed to be faithless to their engagements, would too often be able to effect their purpose ; such a doctrine would evidently tend to relax the ties which bind men to a faithful performance of their contracts, and in its operation upon society be attended with the most baneful effects. The principle therefore upon which the decision at lav/ was founded, ⅛ defensible not only upon the score of authority, but upon its intrinsic utility.

It might have admitted of some doubt whether Marshall could not in equity, have been relieved from the operation of this principle notwithstanding the decision at law, if he had shewn that Craig had assented to his making the purchase of Briscoe’s claim ; in that case a court of equity might have considered him a trustee for Craig, and allowed him credit for the money expended in the purchase. But there is no direct allegation in the bill of Craig’s acquiescence in the purchase, and the insinuations to that effect are peremptorily and posi, tively repelled by the answer and wholly unsupported by proof, To treat Marshall as a trustee for Craig against his consent in consequence of an act done in manifest violation of their express agreement, would be unwarranted by any precedent, and in effect would be giving countenance to a plain breach of moral duty* which enjoined upon Marshall the observance of his Contract.

The unfairness of Craig’s conduct with respect to the trial at law, as charged in the bill, is not supported, and requires no particular comment, as the material facta now proven are the same as those proven on the trial at law. — —Decree affirmed.  