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in chancery, that the plaintiflF must have some legal or bene-
ficial interest in the subject of controversy involved in the
suit, and which the decree may affect. Crocker v. Siggina,
7 Conn., 842 , Stoiy's Eq. PL, (Eedfield's Ed.,) §§ 76a, 231,
231a, 236.

We are of opinion that there is manifest error in the de*
crce complained of and it is reversed.

In this opinion the other judges concurred. ..J



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16 NEW LONDON AND WINDHAM



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Qoinn v, Koath. ^\



Charles B. Quinn vs. Edmund D. Roath

Wliether a specific perfomiance of a contract shall bo decreed is in a great meas
ore dependent upon judicial discretion, exercised not arbitrarily or capriciously,
but reasonably, according to the circumstances of the particular case

Every agreement as to time is not of the essence of the contract, and therefore
every failure in a literal performance in that respect does not of necessity fur-
nish to the other party a sufficient defense against a bill for a specific performance.

To make it a sufficient defense the broken stipulation should be of such a char-
acter as to constitute a condition precedent to the petitioner's right to enforce
the contract ; or be such as on its non-fulfilment without reasonable excuse to
render in terms the contract void , or in some other manner to make it clearly
inequitable, under circumstances of fraud, mistake, surprise, unreasonable de-
lay, gross neglect, bad faith, or other manifest unconsdentiousness, that the
petitioner should have a decree.

By a contract dated Biarch 20th, 1868, R agreed, for the consideration of $400,
to sell to Q a certain piece of land, the deed to be given at any time within one
year on the payment of the purchase money, and by a final and separate
clause Q agreed to pay, on the first of April following, at least $25, On the
morning of April 2d, Q informed R that he was ready to pay him the $25 and
in the afternoon tendered him that sum, and on the 15th of April tendered him

. the $400, which B refused to receive. Held that the time named in the con-
tract for the payment of the $25 was not of the essence of the contract, and
that Q was entitled to a decree for a conveyance

On the morning of April 2d, the respondent, claiming the contract to be void in
consequence of the petitioner's default, bargained the land by parol to one B,
and after the petitioner had tendered the $400, and had put his contract upon
record and instituted the present suit, conveyed the land to B, who gave his
note for the purchase money, which was still unpaid. Held that this constituted
no such change of circumstances, either as to the condition of the parties or as
to that of the property, as ought to make the defense of the non-pi^ment of
the $25 on the day agreed, available against the petitioner's bill.

Under sec. 2, chap. 16, of Rules of Practice, (18 Conn., 574,) which requires that
in all motions for a new trial the precise points made by counsel must clearly
appear and that questions not raised distinctly below will not be heard, it is
not necessary that tho precise object for which an inquiry is made should be
stated where it sufficiently appears from the question itself whnt the object was.

Upon the hearing in the court below the resi)ondent offered parol evidence that
at the time of the negotiation and of the execution of the written contract it
was orally agreed that if the petitioner failed to pay the $23 on the first day
of April, the contract should be void. Held to be admissible

Where a party seeks to compel a specific performance of a written contract without
regard to collateral parol stipulations, a court of equity will receive evidence
of the parol stipulations, so as to require the party seeking its aid to perform
the entire contract, both parol and written, before giving him tlie aid sought.

A petitioner is not entitled to the same indulgence in the introduction of parol
proof in such a case, as the respondent may be, who offers to prove the exist'
ence of parol stipulations varying or limiting the written contract.



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MARCH TEftM, 1870. 17

Quinn v. Boath.

Clear proof of such parol stipulations is required to justify the dismissal, on tho
ground of non-compliance with them, of a bill for a specific performance.

Eyidence of such parol stipulations is also admissible wuere they have Operated
to induce the respondent to sign the written contract

To compel a respondent to perform a vrritten contract which has been varied by
parol stipulations, would be compelling him to perform a different agreement
from the one in fact made, and in the present case would be compelling him to
perform an agreement which in consequence of tho variation and the peti-
tioner's default in respect to it had become void.

Bill in equity for the specific performance of an agree-
ment to convey a piece ot land; brought to the Superior
Court in New London county, and heard, upon the bill and
answer, before Mlnor^ J.

The court made the following special finding of facts :

On the 20th day of March, 1868, the petitioner and respond-
ent entered into the following written contract, and on the-
same day the petitioner paid to the respondent one dollar^
which was receipted upon it.

" I, Edmund D. Roath, ot Norwich, in the state of Connec-
ticut, for the consideration of four hundred dollars, receiA'edi
to my full satisfaction, do agree to and with Charles B. Quinm
of said town and state, that 1 will sell to nim a certain lot
of land situated in said Norwich, and bounded Ac, [describ-
ing it.] The deed of said lot ot land to be given at any
time within a year from the date ot this agreement, unon tne.
payment to me of the purchase price of said lot by the said.
Charles B. Quinn, and if tlie said Charles B. Quinn fails to>
take said deed within the year he is to forfeit what money he:
pays to bind this agreement.

*' It is further agreed by Charles B. Quinn, one ot the par-
ties to tliis instrument^ that the aqueduct pipe now running
through said lot is to remain indefinitely, and the pump-house
I to remain for three years ; and also agrees to pay, on the
first of April next, at least twenty-five dollars. Norwich,
March 20th, 1868."

On the first day of April, 1868, the petitioner, being busily
engaged in moving his household effects and changing his
place of residence, did not pay tlie respondent the $25 stip-
ulated to be paid on the first day of April, but on the following
day, in the morning, the petitioner told the respondent that

Vol. x^xvii. — 3



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18 NEW LONDON AND WINDHAM.

Quinn v. Roath.

he was ready to pay liim the 825 in part fiilfilment of liis
agreement, and was then informed by the respondent that he
need not make the payment, as he had agreed on that morn-
ing to sell and convey, and had absolutely sold, the premises
to his brother-in-law, Samuel B. Bulkeley. In the afternoon
of the same day, at about two o'clock, the petitioner tendered to
the respondent the $25, which the respondent refused to receive.

Tlie petitioner never knew from tb.e respondent or from any
other source, that the latter had sold or contemplated selling
the premises to Bulkeley, until told by the respondent as above.

On the 11th day of April the petitioner caused the written
contract to be recorded in the land records of Norwich, in
which town the premises were situated.

On the 15th day of April the petitioner tendered to the
respondent, in lulftlment ot the agi*eement, the sum of $400,
and also offered to him for execution a deed of the land prop-
erly prepared. The respondent refused to receive the money,
and also refused to execute the deed. Tlie petitioner twice
repeated the tender before bringing suit, but the respondent
still refused to receive the money and to convey the land.

The respondent claimed on the trial that on the 20th day
of March, the day the contract was executed, after a part of
tlie contract had been reduced to writing, and while he and
the petitioner were negotiating as to the payment of the $25
on the 1st of April, it was understood and agreed between him
and the petitioner that if the $25 was not paid on the 1st day
of April the conti'act sliould be null and void, and offered parol
testimony in support of such claim. To the admission of thi->
testimony the petitioner objected, and tjie same was ruled out.

After the execution of the written contract on the 20th
day of Marcn, and before the 1st of April following, the said
Bulseley called upon the respondent to purchase the premises
and was informed by him that he had agreed to sell the same
to the petitioner, but that if on the 1st day of April the peti-
tioner failed to pay him $25, his agreement with him would
become void, and he would sell the premises to him, Bulke-
ley. On the morning of tne 2d day ot April, and before the
petitioner called upon him stating that he was ready to pay



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MARCH TERM, 1870. 19

Quinn v. Roath.

him the $25, the respondent called upon Bulkeley and orally
agreed to sell and convey the premises to him for $400. The
agreement between Bulkeley and the respondent was never
reduced to writing.

Afterwards the respondent conveyed the premises to Bulke-
ley by a warranty deed. The precise time when this deed
was executed and acknowledged by the respondent did not
appear, but it was after the commencement of the present
suit, and at the time of its execution and acknowledgment
both the respondent and Bulkeley knew that the petitioner
claimed the premises under the written contract. The deed
had been prepared some time before its execution, and the
date of April 2d which had been put in it, was inadvertently
left in at the time of its execution and acknowledgment.
Bulkeley, at the time of the execution of the deed, gave the
respondent his note for $400, which the latter still holds, and
caused the deed to be recorded in the land records of Norwich
on the 11th day of September, 1868. The premises in question
adjoin other lands of the petitioner and are beneficial to him.

Upon these facts the Superior Court passed a decree that
the respondent should execute and deliver to the petitioner
a deed which should be sufficient to convey to him the tract
of land described in the agreement and vest in him a clear
title to the same in fee simple, subject to the provisions con-
tained in the agreement with regard to the aqueduct pipe and
pump house, but free from all other incumbrances and claims.

The respondent moved for a new trial for error in the ex-
clusion of the parol evidence offered by him. He also filed
a motion in error, assigning as error, — 1. That specific per-
formance of the contract should not have been decreed
because the petitioner had failed to perform on his part. 2.
That specific performance should not have been decreed
because the land had been sold in good faith to Bulkeley, who
now held the title. 3. That the court erred in passing the
decree against the respondent without citing, in Bulkeley to
answer to the bill. 4. That as the respondent liad conveyed
the land in good faith to Bulkeley, it was not now in his
power to Qonvey it to the petitioner. 5. That the court



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20 NEW LONDON AND WINDnAM.

Quinn v, Koath.

erred in making an absolute decree for the specific perform-
ance of the contract inasmuch as it nowhere appeared upon
the record that the petitioner was without adequate remedy
at law, or that he could not be sufficiently compensated in
damages for the breach of the contract, if it had been broken.

Pratt^ in support of the naotions.

1. In this case the question is presented, whether a spe-
cific performance will be decreed against a respondent, when
the petitioner has failed td perform his part of the agreement,
and when the respondent has, in consequence thereof, been
placed in an altogether diflFerent position from what he would
otherwise have been. The object of the decree for specific
performance is to do complete justice between the parties.
The rule on the subject is not arbitrary. The matter lies
within the discretion of the court. "Caution is to be used in
decreeing the specific performance of agreements ; and the
court is bound to see that it really does that complete justice
that it aims at, and which is tlie ground of its jurisdiction." 1
Story Eq. Jur., § 716 ; 2 Swift Dig., 34 ; Patterson v. Bloomer,
85 Conn., 67.

2. The petitioner in this case has failed to perform his
agreement as to time. By the terms of the contract $25 was
to be paid on or before the 1st of April. It was not so paid.
The respondent had a right to suppose that the petitioner had
abandoned the contract, and to sell the land to another
party. While time may not always be of the essence of a
contract in equity, if it clearly appear that it was so intended
by the parties, and no inevitable accident have intervened to
prevent the practical fulfilment, a court of equity will not de-
cree a specific performance in favor of an unpunctual party. 3
White & Tud. Lead.Cas. in Eq., (H. & W. ed.,) 82 ; 1 Story Eq.
Jur., (Rcdf. ed.,) § 776 ; Benedict v. Li/nch, 1 Johns. Ch., 370.

3. The excuse offered by the petitioner, that he was
busily engaged in the morning in changing his place of resi-
dence, is not sufficient. His time was under his own control,
and his use of it for another purpose wholly voluntary.

4. The cases are all explicit, that where a change of cir-
cumstances has occurred owing to the delay of the petitioner,



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March term, isto. 21

Quinn v, Roath.

a gpecific performance will not be decreed in his favor. 1
Story Eq. Jur., §§750, 769 ; 3 White & Tud. Lead. Cas. in
Eq., (H. & W. ed.,) 80 ; 2 Swift's Dig., 29. In this case the
respondent gave the petitioner the full time to perform an
essential part of the contract. On his non-performance the
land was sold to a third party, and soon thereafter a deed
executed. The contract with Mr. Bulkeley was as binding as
the contract with the petitioner. It is not equitable to ol>lige
the respondent to pay the penalty fixed in the decree under
the circumstances of the case.

5." The evidence oflfered by the respondent was improperly
excluded. In cases of this sort, courts of equity will permit
the respondent to show by parol that there have been material
terms omitted in the written agreement ; that there has been
a variation of it by parol ; or that it has been agreed by parol
to treat it as void and thus discharge the written contract. 1
Story Eq. Jur., §770; 2 Swift Dig., 29; 2 White & Tud.
Lead. Cas. in Eq., (H. & W. ed.,) 659, 660. The law upon
this subject is different in equity from what it is at law ; and
evidence which would be totally inadmissible at law is admis-
sible as a defence to a bill demanding a specific performance.
1 Sugden on Vendors, (10th ed.,) 224; 2 Swift Dig., 29.
The court erred in following the strictly legal rule instead of
the equitable. The foundation of the equitable rule is appar-
ent, which is, that courts of equity will not enforce agree-
ments which are not, under the actual circumstances, just
between the parties. In the case at bar it would be manifestly
unjust, if we produced clear evidence of a parol agreement
between the parties that the written contract should be null
and void if the payment was not made on the first of April, to
enforce the written contract despite the parol agreement.
We should, therefore, even if the court should be of the
opinion that the decree ought not to be reversed and the bill
dismissed, have a new trial, and be let in to prove the parol
agreement. 2 Swift Dig., 34 ; Potter v. TuUle^ 22 Conn.,
512 ; Dmffht v. Pomeroy, 17 Mass., 303.

Hovey and Hahey^ contra.

1. Exact performance in regard to time is not required



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22 KEW LONDON AND WINDHAM.

Quinn v. Koath.

in order to entitle a party to a specific performance. 2 Story
Eq. Jur., §§ 747, 771, 776 ; 3 White & Tud. Lead. Cas. in
Eq., (H. <fe W. ed.,) 74. The payment of $25 on the first
day of April was not of the essence of the contract, nor a
condition precedent. 3 White & Tud. Lead. Cas. in Eq.,
(H. & W. ed.,) 84. The principal thing was the payment
of $^iOO within the year. If he failed to do so he forfeited
what he had paid on the contract. If he had paid one hund-
red dollars instead of one dollar on the execution * of the
contract, it would be subject to the same construction that it
is now. If the claim of the defendant is correct, whatever
sum the petitioner had paid would be forfeited, if he failed
fi'om any cause to pay $25 on the first day of April.

2. The sale to Bulkeley does not affect the equity of the
petitioner to relief. No legal contract had been made with
him when the $25 or the full sum of $400 was tendered. It
rested wholly in parol and nothmg had been done under it.
After this petition had been brought, and Avith lull knowledge
of the fact, Bulkeley took his deed. He acquires his title
pendente lite, and is bound by the decree made in the suit. 2
Story Eq. Jm\, §§ 784, 788, 789 ; 1 id., §§ 405, 406 ; Mrton
V. Birge^ 35 Conn., 250. If the conveyance liad been made
to Bulkeley lx)fore suit brougiit, he would liave been a neces-
sary party, but taking his deed pending the litigation he is
concluded by the decree.

3. Tlie defendant will not be permitted to say that he
cannot perform, when he has conveyed pending a petition to
enforce perfoi-mance. 3 White & Tud. Lead. Cas. in Eq., 91.

4. Tlie right to recover damages at law is not always a
test as to granting relief in equity. Relief may be granted
when, from failure to i)erform strictly, no damages could be
recovered at law. 2 Story Eq. Jur., §§ 741, 748 ; 3 White &
Tud. Lead. Cas. in Eq., 58. If, however, damages could be
recovered at law, it furnished no bar to relief in equity. Tlie
lands in question adjoin other lands of the petitioner, and
are l)eneficial to him, and therefore comi)ensation in damages
would not be adequate relief. 2 Story Eq. Jur., § 746.

5. The specific performance of contracts is a matter of
discretion in the Court. 2 Story Eq. Jur., § 742. That did-



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MARCH TERM, 1870. 23

Qninn v. Roath.

cretion has been properly exercised, within the rules and
principles applicable to the subject. There is therefore noth-
ing erroneous in the decree.

6. No question is presented by the motion for a new trial
for the consideration of this court. It does not appear what
point was made and decided in the court below. This is
necessary by the rules of practice. Rules of practice, Ch.
16, § 2. (18 Conn., 574.) If the evidence was admissible
for any purpose, it may have been offered for some purpose
for which it was inadmissible. The defendant not being con-
fined by his motion to any claim made at the trial, could set
up an entirely different claim here, which is not fair to the
court or the opposite party. But if the court is to consider
the motion, and to examine whether the evidence was admis-
sible for any purpose, we claim that it was not.

Phelps, J. 1. Tliis case comes before us on a motion in
error, and also a motion for a new trial. It is claimed in
support of the motion in error, that the respondent was not
bound to a specific performance of the contract, because one
of ita provisions required the petitioner to pay $25 of the
purchase money for the land on the first day of April follow-
ing the execution of the contract, and he had neither done
it, nor furnished a reasonable excuse for his non-performance.

For all the purposes of this motion the writing must be
held to contain the entire and precise contract between the
parties, and the claim here insisted on raises the question
whether that provision in the agreement, fairly considered in
the light of the ascertained facts, is of such a character as to
render the time named in it of the essence of the contract.

It is said by the respondent that the principle which should
govern this case is not distinguishable from that declared in
Potter V. Tuttle^ 22 Conn., 512. The decision in that case
did not turn upon this question, and the language of the
court on this subject was confined to a brief and -very general
statement of the law, rather than to its pertineiicy to the
facts of the case then before the court, and we cannot deter- ^
mine what would have been their adjudication of the point in
that case if its decision had been rendered necessary. They



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24 NEW L0ND6N AND WLNDHAM.

Quinn r. Roath.

say, " When parties have deliberately by their agreements and
covenants fixed a time for the performance of an act, a court
of equity will be very cautious how it interferes in disregard
of it, and thus in effect change the contract which the parties
have made. It will* not do this unless by reason of mistake,
or some other cause falling swithin the legitimate powers of a
court of equity, it shall see that essential justice demands
the exercise of its jurisdiction irrespective of the lapse of time.
2 Story Eq. Jur., § 776, note. Hipwill v. Knight^ 1 Younge
& CoU., 415."

It will be observed on examination of that case, that the
respondent agreed to convey the premises in question within
a certain time, and the petitioner on his part promised to pay
the entire consideration for the same at the expiration of the
specified time.

Whether a specific performance of a contract shall be de-
creed is in a great measure dependent upon the exercise of a
sound judicial discretion, not arbitrarily or capriciously, but
reasonably, according to the circumstances of the particular
c^e, and therefore if the court had in that case strictly
applied the principle which they laid down, it would not neces-
sarily constitute a precedent which should control our deter-
mination of the case before us. The court seems not to have
so much considered the question of the materiality of time,
as the inequitable character of the claim of a party to enforce
a contract against another which by his own inexcusable
laches he has himself first broken, and their general views
on that subject are unquestionably sound.

Every agreement as to time is not of the essence of the
contract, and therefore every failure by the petitioner in a
literal performance does not of necessity furnish a sufficient
defence against a bill for a specific performance ; and we*
think no better or safer general rule on this subject can be
prescribed than that the broken stipulation should be of such
a character /is to constitute a condition precedent to the
petitioner's right to enforce the contract, or be such as on its
non-fulfilment without reasonable excuse to render in terms
*the contract void ; or in some other mariner to make it clearly
inequitable, under circumstances of fraud, mistake, surprise,



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MARCH TERM, 1870. 25

Qmnn v. Roath.

unreasonable delay, gross neglect, bad faith, or other manifest
tinconscientionsness, tiiat the petitioner should have a decree.

K we turn to the facts in this case we shfdl notice that
the contract is dated on ihe 20th of Marc)i, that the whole
amount of the purchase money ^as $400 to be paid within a
year, and that the concluding sentence of the agreement is
a promise *by the petitioner to pay on the first day of April
thereafter at least twenty-five dollars. The clear intention of
the parties was, that a full year should be given for the com-
pletion of the payment of ihe entire sum. No condition is
expressed that if the petitioner should make default of pay-
ment of the $25 at the time promised he should not upon
payment of the full sum within the year be entitled to the
land, or tiiat the contract should be void in consequence of
the non-payment of .the $25 at the time named, or that the
punctual payment of that sum should be a condition precedent
to his right to require of the respondent a performance of the
contract on his part upon the subsequent complete perform-
ance by the petitioner within the year.

The record discloses nothing from which we can* infer a
design by the petitioner not to perform the contract in good
faith, or that he intended to lie by, and by taking time specu-
late on the chances of a change in the value of the land, with
a view to take advantage of it by finally performing or refus-
ing to perform as should appear most for his interest. He
was busily engaged on the first of April in removing his



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