Hull v. Peer

Caton, C. J. The bill in this case, is for a specific performance of a parol agreement for the sale of land, for the consideration of one hundred and fifty dollars; and states the mode and terms of payment. It avers possession, improvements, part payment and tender of the balance. The answer, which is sworn to, the oath not having been waived, does not interpose the statute of frauds, but positively denies that any such contract, as is stated in the bill, or any other contract for the sale of the land, was ever made. Here is the great and leading issue, formed by the pleadings, and it requires evidence, equal to the testimony of two witnesses, to overcome this answer. This is upon the ground, that the complainant having required the defendant to answer on oath, has thereby made him a witness in the cause, and his testimony being against the allegations of the bill, it must be neutralized by evidence equivalent to it before he can commence establishing his case, by other and distinct proof. In this case, it is proved by a cloud of witnesses, that the answer is false, when it denies the existence of any agreement for the sale of this land. There are at least five witnesses, who testify to statements made, repeatedly and at different times, by the defendant, that he had sold the land to complainant, though but two state the price and terms of the sale, as stated in the bill. These are Thomas Orr and Harvey Gallaher, though Fugate and Henry Johnson establish.the mode and times of payment, as stated in the bill; but by them it does not appear that the defendant stated the price. Now here is the testimony of all these witnesses, going directly to impeach the truth of the defendant’s testimony in his answer. The defendant must be a man, who habitually states the most reckless falsehoods, in his daily intercourse with his neighbors, or his answer is false, when he denies that an agreement for the sale of this land had been made between the parties. We are constrained to regard the answer as untrue, and unworthy of the least credit. It is true that one of the complainant’s witnesses is very effectually impeached, in his general reputation, and were he unsupported by other witnesses, we should give little or no heed to his testimony ; but the defendant’s answer is shown by the other witnesses, and many of them, to be absolutely false, and is entitled to even less credence than the testimony of Gallaher. The contract then was proved as averred, very clearly and satisfactorily, and so was the payment of the principal, and thirty dollars of the interest of the note; while the proof also shows, that the defendant paid twenty or twenty-five dollars of the interest on the note. There was proof of considerable other dealing between the parties, all having more or less connection with the land contract, and it is not entirely clear how the balance should be struck between them. The complainant averred the tender of fifty dollars to the defendant, before filing his bill, and he proves a tender by one witness of ninety dollars, and by another, he proves that the defendant had admitted a tender of one hundred and ninety dollars. The decree awards to the defendant the ninety dollars tendered, and requires him to convey. But it is objected that the allegations and proofs do not agree, and hence the proof of the tender of ninety dollars ór more, is inadmissible, under an averment of a tender of only fifty dollars, stating, also, that that was the amount due the defendant on the purchase of the land. Now, strictly speaking, that was all that was due of the purchase money, under the literal terms of the contract, according to the testimony of Mr. Fugate. He says that Bowen was to substitute a new note, which the treasurer was to accept in place of the one hundred dollar note of Hull’s, which he held, and this was to stand as a payment of one hundred dollars of the purchase money, and the proof abundantly shows, that after this, but fifty dollars was due. This was in fact done in a mode which met the concurrence and approbation of Hull. When they met at the treasurer’s for the purpose of the substitution, the treasurer objected to taking a note in substitution, with Bowen as nominal principal, because Bowen was already owing the school fund seventy-five dollars, and hence it was necessary that some one else should, in appearance at least, be the principal of the new note; and he suggested that Hull should appear as principal in the new note and Bowen as surety, instead of making Bowen principal and Hull surety. This suggestion met the approbation of all parties, and it was so done, although this new note was always treated as Bowen’s note by all parties, and in equity at least, if not at law, Bowen was in truth and fact the principal in that note, as much as if he had appeared so upon its face. Strictly and technically speaking, this was a payment of the first hundred dollars, according to the literal terms of the agreement, and justified the averment that but fifty dollars remained due, and a tender of that amount. And yet it was no doubt the duty of a court of equity, to go behind this literal performance, in order to do complete justice upon the broadest principles of equity, and protect the defendant against loss upon that note, and compel the complainant to reimburse the defendant the interest he had paid on that note, before it would give him the benefit of his literal performance. So too, the court might, under some circumstances, and perhaps a close computation in this case would show, that it did require the defendant to pay interest on the remaining fifty dollars, at least for a part of the time, although not required to do so by the literal terms of the bargain as proved. Now the complainant was not bound to anticipate in his pleadings all the discretionary equities which the court might adjudge against him. To ascertain the amount of the balance which the complainant may have to pay, in order to obtain a specific performance, may be, and often is, in the nature of taking an account, and the complainant need not at his peril state the exact balance which may ultimately be found against him. In a ease where the true balance is uncertain, and can only be ascertained by the adjudication of the court, upon testimony to be taken, the pleader may state the case most favorably to himself, and then comply with the decree, if it is less favorable than was his claim. So here, the complainant might reasonably say, that but fifty dollars of the purchase money was due, and so insist in his pleadings, submitting, however, to the determination of the court, which, upon the evidence, and considering all the equities of the case, adjudges that he shall pay more than that, in order to entitle him to a specific performance of the agreement. Although in this case, there is probably enough shown of part performance, by possession, improvement and payment, to take this case out of the statute of frauds, had that been interposed, as that has not been done, it is unnecessary to discuss that question. We are of opinion that the decree should be affirmed. Decree affirmed.