Brashier v. Gratz

• Decision Date: 14 March 1821
• Citation: 19 U.S. 528,6 Wheat. 528,5 L.Ed. 322
• Parties: BRASHIER v. GRATZ et al
• Court: U.S. Supreme Court

19 U.S. 528

5 L.Ed. 322

6 Wheat. 528

BRASHIER v. GRATZ et al.

March 14, 1821

APPEAL from the Circuit Court of Kentucky.

This cause was argued by Mr. B. Hardin^a for the appellant, and by Mr. Sergeant for the respondents.^b Mr. Chief Justice MARSHALL delivered the opinion of the Court.

This is an appeal from a decree of the Circuit Court for the District of Kentucky, dismissing a bill brought by the appellant against the heirs of Michael Gratz for the specific performance of a contract.

Michael Gratz, who resided in Philadelphia, had purchased from John Craig, of Kentucky, a tract of land containing, by the survey, one thousand acres, for which no patent had then issued. Subsequent to this purchase, the patent issued in the name of Craig, who sold a part of the land to Keyser, and a suit had been brought in the federal Court of Kentucky by Gratz, against Craig and Keyser, to compel a conveyance of the land. Michael Gratz had, in the mean time, sold eight hundred and twenty-four acres, part of this tract, to Robert Barr.

While the suit against Craig and Keyser was depending, Walter Brashier, the plaintiff, who resides in Kentucky, came to Philadelphia on business, and on the 2d day of March, in the year 1807, purchased the residue of the land from Gratz. Brashier had married the daughter of Robert Barr.

The residue of the land Was estimated by the parties at 302 acres, for which Brashier agreed to give the sum of $6795 in his negotiable notes, payable in six, twelve, and eighteen months. From this sum was, however, deducted $250, 'allowed to the said Walter Brashier, towards the costs and expenses of prosecuting the suits now depending, for the recovery of the lands hereby contracted for, which is accepted by the said Walter, as a full satisfaction for all costs, trouble and expense which he may be at, in prosecuting the said suits, and which he hereby agrees and undertakes to manage at his own costs and expense. And it is hereby agreed that a correct and accurate survey shall be made, at the expense of the said Michael, of all the said residue of the abovementioned tract of land, lying within the limits of the original survey thereof, not sold to the said Robert Barr; and if, upon such survey, it shall be found, that the said residue doth not contain the quantity of 302 acres, then, for every one deficient, the said Michael Gratz, his heirs, executors, or administrators, shall pay or allow to the said Walter Brashier, his executors, administrators or assigns, the sum of twenty-two dollars and a half; and if any part of the said residue shall be lost, in all, or any of the said suits now depending, or that may be instituted hereafter, for any part of the said residue, the said Michael Gratz, his heirs, executors or administrators, shall only be liable to refund to him, the said Walter Brashier, his executors, administrators or assigns, the sum of 11 dollars 25 cents, for each and every acre so lost. It being hereby declared, that the said Walter Brashier has purchased the title of the said Michael Gratz, at his own risk and hazard, and so that he shall have no recourse against the said Michael Gratz, for want of, or for any defect in the title to the said residue, or any part thereof, save only the price of 11 dollars 25 cents per acre, for every acre which shall be lost as aforesaid. And the said M. G. for himself, his heirs, executors, and administrators doth covenant and agree, that he or they shall and will, at any time after payment of the notes aforesaid, when thereunto required, by a good and sufficient deed, conveyance, or assurance in the law, convey and assure unto the use of him, the said Walter Brashier, his heirs and assigns forever, all his, the said Michael Gratz's estate, right, title and interest, of and in all the said residue of the above mentioned trace of land.

Mr. Brashier executed his notes in conformity with this contract, and returned to Kentucky, where he requested his brother-in-law, Thomas T. Barr, to attend to the prosecution of the suits then depending. Mr. Barr resided near the place where the Court was held, and Mr. Brashier at the distance of sixty or seventy miles. Mr. Barr immediately employed Mr. Bledsoe, a lawyer of eminence, to assist Mr. Hughes, who had been engaged by Mr. Gratz, and some time afterwards spoke to Mr. Wickliffe, but did not pay him a fee. No progress, however, seems to have been made in these suits, and the plaintiff failed to pay the fees of the officers of the Court, which were demanded and received from Michael Gratz, in the year 1811, and afterwards from his representatives.

The notes for the purchase money were protested for non-payment, and have not been paid.

In 1811, Mr. Brashier came to Philadelphia, when Gratz offered to convey the land on his paying his notes. Mr. Brashier being unable to pay them, Gratz offered to rescind the contract, which Brashier declining to do, the question was referred to arbitrators, who were of opinion, that the contract was still binding. About this time, Brashier, who had been for some time much embarrassed, appears to have become notoriously insolvent. In the autumn of 1811, Gratz departed this life, and in July, 1812, his heirs again offered to convey, on payment of the notes which Brashier had given for the purchase money. Payment not being made, the heirs of Gratz took the management of the suits again into their own hands, which were prosecuted with vigour, and in 1813, were finally determined by a decree in their favour. About this time the land rose suddenly to about 80 or 100 dollars per acre. After the decision of the cause, and after this rise in the value of the land, Brashier, in November, 1813, entered into an agreement with Lewis Saunders, by which he was to convey to Saunders half the land purchased of Gratz, in consideration of Saunders paying, or tendering to the heirs of Gratz, the full amount of the notes he had given for the purchase. Saunders immediately offered his contract to the heirs of Gratz, and requested them, if they were willing to take it, and to indemnify him, to acknowledge a tender of the money, which the contract bound him to tender. They avowed their opinion, that the contract of Michael Gratz with Brashier was of no validity, but consented to take the contract with Sannders, and acknowledged the tender. When in possession of this acknowledgment, Brashier instituted his suit in the Court of Kentucky for a specific performance of the contract of the 2d of March, 1807. The defendants removed this suit into the Circuit Court of the United States, where they filed their answer, insisting, that the Court ought not to decree a specific performance, because the plaintiff had totally failed to perform his part of the contract until there was such a change of circumstances as materially to affect the rights of the parties. The Circuit Court dismissed the bill, and from that decree the plaintiff has appealed to this Court.

The appellant insists, that in equity, time is not of the essence of the contract; that it is in part performed; and that his failure to pay the purchase money until December, 1813, when the tender was made, is justified by the circumstances of the case.

The rule, that time is not of the essence of a contract, has certainly been recognized in Courts of equity; and there can be no doubt, to perform his the part of a purchaser or vendor, to perform his contract on the stipulated day, does not, of itself, deprive him of his right to demand a specific performance at a subsequent day, when he shall be able to comply with his part of the engagement. It may be in the power of the Court to direct compensation for the breach of contract in point of time, and in such case the object of the parties is effectuated by carrying it into execution. But the rule is not universal. Circumstances may be so changed, that the object of the party can be no longer accomplished, that he who is injured by the failure of the other contracting party, cannot be placed in the situation in which he would have stood had the contract been performed. Under such circumstances, it would be iniquitous to decree a specific performance, and a Court of equity will leave the parties to their remedy at law.

It is true, that he who has been ready to perform, may at any time file his bill in Chancery, requiring the other party to perform his contract or to rescind it; and the Court will rescind the contract if he who has failed cannot, or will not, perform it. But this is not always necessary, and would not be always an adequate remedy.

If, then, a bill for a specific performance be brought by a party who is himself in fault, the Court will consider all the circumstances of the case, and decree according to those circumstances.

A consideration always entitled to great weight, is, that the...