1821. Brashier v. Gratz. 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 contract, though not fully executed, has been in part performed. The plaintiff claims the benefit of this principle, and alleges, that by prosecuting and managing, at his own expense, the suits depending in Kentucky, he has performed that part of the agreement. If this allegation be supported by the fact, it will undoubtedly have great influence in the decision of the cause. The evidence is, that the plaintiff, soon after his return to Kentucky, employed a gentleman of the bar, in addition to the counsel previously engaged by Mr. Gratz, and paid him his fee. It is also in evidence, that finding the business did not advance, he spoke to other counsel; but his application was not accompanied with a fee, and was not much regarded. It appears that a survey was necessary, and that the deposition of a Mr. William Morton was indispensa Yet ble to the successful termination of the cause. We think this cannot be considered as such a performance of his undertaking, " to manage the suits at his own expense," as to entitle him to call on the vendor for an execution of the contract. It has also been contended, that by the agreement between the parties, Mr. Gratz was bound to survey the land, and that this was a preliminary step to be taken by him before he could justly require Mr. Brashier to pay his notes for the purchase money. Although this could not, at law, be pleaded to notes importing an absolute promise to pay money, it will readily be admitted, that if the understanding of the parties had been, that Mr. Gratz should make 1821. Brashier V. Gratz. 1821. Brasher Ꮴ . Gratz. the survey, and that it should precede the payment of the notes, such understanding would account for the non-payment of the notes, and would place the demand for a specific pèrformance of the contract on very strong ground. But the agreement does not indicate the expectation, that Mr. Gratz should make the survey, although the expense of it would be chargeable to him, and as it might be of advantage to Mr. Brashier, and could be of none to Mr. Gratz, as Mr. Brashier was a resident of Kentucky, and Mr. Gratz of Philadelphia, the expectation was not unreasonable, that Mr. Brashier would cause it to be made. He might be expected to move in this business, and to require Mr. Gratz to attend to it. His not having done so, is a proof that he did not suppose the survey to be of any consequence, because he did not intend to pay so much of the purchase money as the survey would show he ought to pay. But the articles of agreement, far from showing that the survey was to precede the payment of the notes, contain expressions indicating the intention, that their payment was not to depend on the survey. The parties stipulate, that for every acre which the survey shall show the tract to contain less than 302 acres, Gratz" shall pay or allow" to Brashier the sum of 22 dollars 50 cents. That is, shall "pay" him if the notes shall have been received, shall "allow" to him if the deficiency shall appear before payment of the notes. Had Mr. Brashier been able and willing to pay his notes as they became due, he had sufficient mo tives for surveying the land. He had reason to believe, that there would be a deficiency. On his return from Philadelphia, in 1807, Mr. Barr, who lived upon the land, and was acquainted with its boundaries, told him that there could not possibly be the quantity he had purchased. He knew, too, that the land had been actually surveyed in October, 1807, by a son of Mr. Gratz, and had reason to believe, that this survey must have disclosed a deficiency. His omission to make any inquiries of Mr. Gratz, or to make a survey, or to demand one, show that his conduct respecting his notes did not depend on a survey. We do not think, then, that Mr. Brashier is justified in withholding the payment of the purchase money by the fact that the quantity of land was not ascertained; nor does the evidence support the opinion that this fact had any influence on his conduct. The plaintiff also attempts to justify the non-payment of the purchase money by the inability of Mr. Gratz to make him a title. But this excuse entirely fails him. He knew perfectly the state of the title, and the articles of agreement show that he knew it. They expressly declare that "the said Walter Brashier has purchased the title of the said Michael Gratz, at his own risk and hazard ;" and that if any part of the land be lost, the said Michael "shall only be liable to refund to him the sum of 11 dollars 25 cents for each acre that may be lost." The contract states that suits were depending for the land, which suits Brashier undertook to manage; and all the testimony in the cause shows that he knew those 1821. Brashier V. Gratz. 1821. Brashier V. Gratz. suits were brought for the legal title. With this full knowledge, he purchases the title of Gratz, and stipulates that, after the payment of the purchase money, Gratz shall convey, not the land, or a good and sure title to it, but "all his the said Michael Gratz' estate, right, title and interest, of and in all the said residue of the above mentioned tract of land.” It is then an essential ingredient in this contract that the purchase money shall be paid without wait ing for the termination of the cause. Brashier takes the whole risk upon himself, except as to half the price of every acre which may be lost; and he is not to retain even that portion of the purchase; but it is to be "refunded" to him whenever the loss shall take place. He had then no right to withhold the payment of the purchase money until the suits should be determined; and any attempt to do so was a violation of the letter and the spirit of his contract. The state of the title furnishes no sort of apology for this violation. Gratz was able to make the conveyance which he had contracted to make, and which Brashier had contracted to receive; and his want of the legal title furnished no excuse for the non-payment of the purchase money. The situation of the parties, and the circumstances in which the property was placed, deserve serious consideration. The contract was made while a suit for the title was depending, and there is reason to suppose that this circumstance had some influence on the price of the article. We perceive that if any part of the land should be lost, one half the purchase |