
    Baker v. Glass. Glass v. Baker.
    Decided, Nov. 2d, 1818.
    
      a. Specific Performance — Incomplete Contract. — II the parties negotiating; for the sale of a contract of land, agree in writing, upon a specified price per acre; but that the Vendor shall take, in payment, a house and lot of the vendee, at cash value, to be pronounced by two persons, (not naming them;) or the money, by certain instalments, in case the vendee shall prefer paying money; and afterwards, (the vendee not having elected to pay money for the land,) the parties, by endorsement on the writing, appoint two persons to value the house and lot, who attempt to do so, but differ in opinion; whereupon they verbally agree to make another appointment, at some other time not specified; the contract is too incomplete to be enforced by a Court of Equity.
    A written agreement was made between Isaac Baker and Joseph Glass, in the following words:
    “Memorandum &c,, the said Isaac Baker has sold his land in the State of Kentucky, two tracts, one on Highland Creek of 900 acres, the other on Grave *Creek of 66 2-3 acres, to Joseph Glass, on the following conditions; for two dollars per acre, provided they will suit Joseph Glass on his return from Kentucky; then the said Isaac Baker is to take a house and lot in Middletown in Berkeley county, Virginia, to be valued by two persons what said property is worth in Cash, or to allow said Joseph Glass fifteen hundred dollars, if it will rent for a term of years at seventy-five dollars, and so on, in proportion, should it rent for more than the above-mentioned sum. Or if the said Joseph Glass should prefer paying me the money, (1) the said Baker agrees to take the following payments, viz; one third in September 1811, one third in September 1812, and the balance in September 1813.”
    Signed and sealed by both parties; dated January 24th 1810; and attested by a Witness ; with a clause subjoined, (which also was signed and sealed;) viz:
    “N. B. It is understood that there is to be a general Warranty given by both parties, for Lands, and House and Lot.”
    Glass went to Kentuckj’, .saw the lands, and on his return told Baker he was willing to take them.
    On the 24th of May 1810, they agreed, by endorsement on the original agreement, to leave the valuation of the house and lot to William Wilson and David Castleman junr. The said referees, after viewing the property, could not agree in opinion, and Baker refused to appoint an umpire, though Glass proposed it, Before they separated, however, it was verbally agreed by Baker as well as Glass, that other referees should be appointed at some other time, but no
    day was fixed on for making such appointment; and Baker, soon afterwards, declared that he considered the contract void, and demanded a surrender of the writing. Glass refused to give it up, and tendered to Baker a Deed conveying to him, in fee *simple, with general warranty, the House and Lot in Middletown, with ' twenty or thirty dollars, which he considered the difference in value between that property and the Lands in Kentucky; which Deed and money Baker refused to receive.
    A Bill was thereupon filed by Glass, in the superior Court of Chancery from the Winchester District, praying that Baker be decreed to convey to him the Kentucky lands, “upon his doing what the Court should think proper,” and that such other relief be given as justice required.
    The defendant by his answer, contended that the Court ought to pronounce the contract void, but said he was willing that a sale of the House and lot on twelve months credit should be directed, with an assignment to him, by the Complainant, of the Bonds taken at such sale, (the property to be held liable for payment thereof,) and a decree for the balance, with interest from the date of the written agreement; or that the Complainant should be decreed to pay for the whole land, in cash, at two dollars per acre, the last day of payment having nearly arrived. The respondent was then and had always been willing to let him have the land for money, at the price, and according to the alternative terms of the agreement.
    Chancellor Carr appointed Edward McGuire and James Stephenson, (or, if they should disagree, Daniel Lee as their umpire, ) to say how much the House and Lor were worth in cash on the 12th of May 1810, and how much at the time of their valuation ; directing them if the value was less at that time than on the said 12th of May 1810, to say what, in their opinion, had caused such depreciation of value. The said referees reported the value at both periods to be the same; to wit, twelve hundred dollars: whereupon the Chancellor was of opinion, that the Complainant, having executed the Deed filed among the proceedings since the last term, would be entitled to a specific performance of the contract in the Bill mentioned, upon his paying the balance of the purchase money for the Kentucky land. He therefore decreed *that if the complainant, on or before the expiration of six months, from the date of this decree, should pay to the defendant the sum of $733 33 cents, with interest ’till paid, on one third of that sum from September 30th 1811, on another third from September 30th 1812, and on the residue from September 30th 1813, then the defendant should forthwith make and execute to the Complainant a Deed in fee simple, with general warranty, for the Lands in Kentucky mentioned in the articles of agreement; should accept the Deed for the House and Lot, and pay the costs of the suit: but, if the Complainant should fail in- making the said payment, his bill should be dismissed with costs.
    This decree was afterwards so modified as to permit the Complainant to pay the money and interest into Court, to be handed over to the defendant; which payment he accordingly made; but then appealed from so much of the decree as directed that he should pay interest. The defendant also appealed; and, on his motion, a Receiver was appointed to put out the money to interest, until the said appeals should be decided.
    Wickham for the defendant,
    (among other points which need not here be mentioned, ) relied upon the cases of Small-wood v. Mercer and Hansbrough, 1 Wash. 290; Graham v. Call executor of Means, 5 Munf. 396; Cooth v. Jackson, 6 Vesey jr. 34; and Milnes v. Gery, 14 Vesey jr. 400, as shewing that the bargain in this case was too incomplete to be enforced by a Court of equity. It is true that Baker made a proposition in his answer; but it was not accepted, and therefore was not binding.
    Stanard for the complainant,
    said the contract was of two parts; first, to sell at a stipulated price the Kentucky land: so far, it was consummate, as soon as Glass agreed to take the land. Subordinate to this, was the second part, prescribing the modes in which Glass was at liberty to effect the payment of the purchase money. The selection of either of those modes had no influence on the main contract. If it were true that the disagreement of the valuers liberated Baker from pro-seeding farther in the ’'valuation, it merely discharged him from the obligation of taking payment in that mode: it did not deprive Glass of the privilege of paying in the other mode authorized by the contract. The effect of such an event is only co-extensive with the subject on which it operates: it excludes the house and lot as a means of payment, but it does not defeat the contract, unless the exclusion of the house and lot as a means of payment, works that effect per se. That such can not be the case, is plainly demonstrable.
    Suppose the house had been destroyed; would Glass be deprived of the privilege of paying for the Kentucky land by the in-stalments stipulated? An abortive attempt to give it a price, so as to make it a means of payment, would, at most, disable Glass from making the payment in that way; but such disability would not deprive him of the privilege of embtacing the other alternative.
    Glass had the privilege of one of two modes, as his choice. If the effort to pay in one mode was frustrated, surely he is entitled to claim the benefit of the contract, on paying in the other.
    The prayer of the Bill is framed with a view to any construction the Court may give the agreement; and while Glass insists that he has done every thing that he ought to have done to entitle himself to the benefit of the contract, he declares his readiness to do any thing the Court shall think he ought to do. It is therefore insisted that, at all events, Glass is entitled to the execution of the contract, whether Baker be or be not bound to proceed in the valuation of the house and lot.
    But, 2dly, the Court did right in proceeding with that valuation, and making it a payment in part for the Kentucky land. According to the terms of the contract, the house and lot were to be valued in cash by two persons. Is this more or less than a sale at valuation general? If the words were, “to be valued in cash,” it would be so; or there could be no sale at valuation. If you go farther, and say, “to be valued by one or more persons in cash,” *this is but an equivalent expression ; for the words added are nothing more than the expression of what is implied in the original phrase. In what does the phrase used in the contract differ from this? It cannot, with any shew of reason, be contended, that there is, or ought to be, any essential difference in the rights of the parties, to have the aid of the Court to get the valuation made, under either form of expression. If, when the stipulation is to take the property at valuation, or at the valuation of one or more persons, the aid of the Court may be obtained; it ought not to be withheld when the stipulation is to take it at the valuation of two persons. In truth, under this contract, neither party was absolutely bound to receive as a value the nominee of the other: both possessed the right to have the intervention of a Court in the nomination of the valuers, and it’s superintendance over the valuation.
    In this view of the question, the cases quoted by Mr. Wickham are direct and explicit authorities in my favour. That parties may waive the exercise of their own judgment, and substitute the judgment of others, as to the price, or other constituent parts of a contract for the sale of property, is not denied. This substitution may be specific, as to the person or persons substituted, and the time and manner of giving their judgment; as in Smallwood v. Mercer and Hansbrough, 1 Wash. 290, and Milnes v. Gery, 14 Vesey jr. 400. Where this is the case, all the specifications must be strictly observed to make the contract binding; for the parties have assented to be bound, only in the mode specified. Or the substitution may be general, indefinite, or limited to certain classes of persons only; in which cases the Court may make the appointment. This principle prevailed in Dandridge v. Harris, 1 Wash, 326, and applies a fortiori in this case.
    The case of Graham v. Call has no application.
    But if Baker be not bound but by persons of his own choice, he is bound here; for the valuation was in fact made by such persons. He waived the privilege of naming ’’valuers himself, and consented that those nominated by the Court should act.
    
    
      
      Specific Performance. — See monographic note on "Specific Performance" appended to Hanna v. wilson, 3 Gratt. 243. See principal case cited in Hinchman v. Ballard, 7 W. Va. 186.
      Practice of Court of Appeals — Rehearing at a Subsequent Term. — On this subject the principal case is cited in Towner v. Lane, 9 Leigh 281. See further, foot-note to Towner v. Lane. 9 Leigh 262; monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.
      (1) Note. Glass never declared his election to pay the money, in preference to letting Baker have the house and lot. It seems too, that the rent that could be obtained was less than 75 dollars per annum, so that the alternative- allowance of $1500 was thrown out of the question. — Note in Original Edition.
    
    
      
       Note. The Court of Chancery in the first instance, directed that the parties should, on or "before a day specified, nominate one person each, as a valuer, and also a third valuer in case the two-first, should not agree: providing, at the same time, that if they should fail to nominate, the persons appointed by the Court should act: Afterwards, by consent of parties, so much of this order as gave them the time and'privilege to choose valuers, was Set aside, and the valuers appointed as aforesaid were ordered to proceed, with all convenient dispatch, to perform that duty . — Note in Original Mention.
    
   November 2nd, 1818, pronounced the Court’s opinion, as follows :

JUDGE ROANE

Upon general principles, and on the authority of the case of Milnes v. Gery, 14 Vesey jr. 400, the Court is of opinion that there was, in this case, no such complete and concluded contract as the Court of Chancery ought to execute. The Decree is therefore to be reversed with costs, and the Bill dismissed.

At the next term, a motion was made for another argument of the cause; but the Court overruled the motion, doubting, at least, it’s right to re-hear a cause ata subsequent term, and thinking it best not to do it.”  