General Principles.

merely an agreement that such wages as were legally due at a foreign port should be paid only at the port of outfit. Ibid.

36. Where a contract for the sale of lands has been in part executed, by a conveyance of part of the land, and the vendor is unable to convey the residue, a court of equity will decree the repayment of a proportionate part of the purchase-money. Pratt v. Law et al., 9 Cranch, 456; 3 Cond. Rep. 460.

37. An agreement, made in distress at sea, fixing the compensation for relief, will not be supported. Cowell v. The Brothers, Bee's D. C. R. 136. Schutz et al. v. The Nancy. Ibid. 139. 38. Parties agreeing to refer a question to their respective governments, are concluded by the decision of the ministers of those governments resident here; and such decision is sufficiently proved by a letter from the consul-general of the party against whom the decision is, stating what the ministers had ordered him to communicate as their decision. Gernon et al. v. Cochrane, Marshal, Bee's D. C. R. 209.

39. A offered to purchase of B two or three hundred barrels of flour, to be delivered at Georgetown, District of Columbia, by the first water, and to pay for them nine dollars and fifty cents per barrel, and to the letter containing this proposition, required an answer by the return of the wagon by which this letter was sent. The wagon was at that time in the service of B, and employed by him in carrying flour from his mill to Harper's Ferry, near to the place where A then was. His offer was accepted by B, in a letter sent by the first regular mail to Georgetown, and was received by him at that place. No answer was ever sent to Harper's Ferry. Held, that this acceptance, communicated at a different place from that indicated by A, imposed no obligation binding upon him. Eliason et al. v. Henshaw, 4 Wheat. 225; 4 Cond. Rep. 433.

branches of equity jurisdiction; and a court of equity will compel a delinquent party to perform his agreement, according to the terms of it, and to the manifest intention of the parties. Ibid.

44. So, if the mistake exist, not in the instrument, which is intended to give effect to the agreement, but in the agreement itself, and is clearly proved to have been the result of ignorance of some material fact, a court of equity will in general grant relief, according to the nature of the particular case in which it is sought. Ibid.

45. If an agreement was not founded on a mistake of any material fact, and if it was executed in strict conformity with itself, it would be unprecedented for a court of equity to decree another security to be given, different from that which had been agreed upon, or to treat the case as if such other security had, in fact, been agreed upon and executed. Ibid.

46. Courts of equity may compel parties to execute their agreements, but they have no power to make agreements for them. The death of one of the parties, and the consequent inefficiency of a security selected and intended to be valid and complete, but which was not so, will not give the right of interference. Ibid.

47. A mistake arising from ignorance of law, is not a ground for reforming a deed founded on such mistake, except in some few cases, and those of peculiar characters. Ibid. 15.

48. When property conveyed in trust, to be sold at public auction, had been sold by private contract, and the property was afterwards offered for sale in the manner prescribed by the deed of trust, for the purpose of making a title to the private purchaser, at which time more was bid for the same than the amount for which it had been privately contracted to be sold, the purchaser by private contract, to whom possession was delivered at the price agreed on, cannot al40. An offer of a bargain by one person to an- lege that the sale was void, since, whatever may other, imposes no obligation on the former, un- be the liability of the cestui que trust to those less it is accepted by the latter, according to the interested in the proceeds of the sale, for the terms in which the offer is made. A qualifica- amount offered at auction, it is not an objection tion of, or departure from these terms, invalid-on the part of the purchaser, to release him from ates the offer, unless the same be agreed to by his contract. Greenleaf v. Queen et al., 1 Peters, the party who made it. Ibid. 136.

41. Where an agreement embraces a number of distinct subjects, which admit of being separately executed and closed, it must be taken distributively; each subject being considered as forming the matter of the agreement, is closed. Perkins v. Hart, 11 Wheat. 237; 6 Cond. Rep. 287.

42. It is a principle of equity, that, when an instrument is drawn and executed, which professes, or is intended to carry into execution an agreement, whether in writing or by parol, previously entered into, but which, by mistake of the draftsman, either in fact or law does not fulfil, or which violates the manifest intention of the parties to the agreement, equity will correct the mistake, so as to produce a conformity of the instrument to the agreement. Hunt v. Rousmanier's Adm'r., 1 Peters, 13.

43. The execution of instruments, fairly and legally entered into, is one of the peculiar

49. Where the vendee of real estate had pur chased it, subject to the dower of the widow, of which dower he might have been informed if he had used proper diligence, a court of equity will not interfere to release the vendee, but will leave him to such legal remedy as he may be entitled to, in case his title should, at any future time, be disturbed. Ibid. 147.

50. Where no specific time is fixed by the contract for the payment of money by one party to another, in judgment of law the same is payable on demand. The Bank of Columbia v. Hagner, 1 Peters, 464.

51. In contracts for the sale of lands, by which one agrees to purchase, and the other to convey, the undertakings of the respective parties are always dependent, unless a contrary intimation clearly appears. Ibid.

52. Although many nice distinctions are to be found in the books, upon the question, whether

General Principles.

the covenants or promises of the respective par- | or that it is unconscientious or unreasonable, or ties to the contract, are to be considered inde- that there has been concealment, misrepresentapendent or dependent, yet it is evident the inti- tion, or any unfairness, are enumerated among mations of courts have strongly favoured the the causes which will induce the court to refuse latter construction, as being obviously the most its aid. If to any unfairness a great inequality just. Ibid. 465. between the price and value be added, a court of chancery will not afford its aid. Ibid.

56. Excess of price over value, if the contract be free from imposition, is not of itself sufficient to prevent a decree for a specific perform-record: this judgment is subject to the legal ance. But though it will not, standing alone, prevent a court of chancery enforcing a contract, it is an ingredient which, associated with others, will contribute to prevent the interference of a court of equity. Cathcart et al. v. Robinson, 5 Peters, 264.

General Principles.

64. The plaintiff, the owner of the steamboat, was not entitled under the contract to recover in damages more than the stipulated price for the freight actually transported. If R. had bound himself to deliver a certain number of barrels, and had failed to do so, N. would have been entitled to damages for such failure; but a fair construction of the contract imposed no such obligation on R. Ibid.

Louis, at a certain rate per barrel, one-half in | contract, and the number of troops there staspecie funds, or their equivalent, and the other tioned; and that rations were to be regularly half to be paid in Cincinnati, in the paper of supplied by such contractor, according to the banks, current there at the period of the deli- number of troops so stationed at such places; very of the stores at St. Louis. Under the and that the contractor was informed he was to agreement was the following memorandum: "It continue so to do, without any other notice so to is understood that the payment to be made in do; and that special requisitions and notices of Cincinnati is to be in the paper of the Miami thirty days would be made and given, for all Exporting Company, or its equivalent." The other supplies, at other places or posts, and for court erred in refusing to instruct the jury, that any change in the quantity of supplies which the plaintiffs could only recover the stipulated might become necessary at the fixed posts, from price for the freight actually transported, and a change in the number of troops stationed at that they were entitled to no more than the such fixed posts; and that such was the underspecie value of the notes of the Miami Export-standing at the war department, in settling the ing Company Bank, at the time that payment accounts of the contractors. But he did not should have been made at Cincinnati. The know of any verbal explanation between the specie value of the notes, at the time they secretary of war and Orr, on this subject, specishould have been paid, is the rule by which fying any thing more or less than what the consuch damages are to be estimated. Robinson v. tract specified; and he did not know that there Noble's Administrators, 8 Peters, 181. had been any submission or agreement of contractors to such a construction of their contracts, but that such was the rule adopted by the accounting officers, in settling the accounts of contractors. The defendant, among other things, introduced evidence to show that the contractor always insisted on the necessity of requisitions and notices, according to the terms of the contract, for supplies at all posts, before he could be charged with a failure; and also, to show the custom of making requisitions, and giving such notices for supplies at all posts where provisions were required, and without regard to their being old established posts, or new ones established after the contract. After the whole evidence was closed, the attorney for the United States prayed the court to instruct the jury, “that it was competent for them to infer from the said evidence, that the contractor, in supplying the fixed posts as he had before done under his former contract, and knowing thereby the number of rations there required, dispensed with any special requisition and notice, in relation to such supplies to said posts; and in case of failure to supply such posts, according to usage and knowledge, the contractor is liable under the bond and contract upon which this action is founded." The circuit court refused to give this instruction; and the question before the su preme court on a writ of error was, whether it ought to have been given. Held, that there was no error in the refusal of the circuit court to give the instruction. The U. S. v. Jones, Administrator, 8 Peters, 399.

65. There is no pretence that R. did not deliver the whole amount of freight in his possession, at the places designated in the contract. In this respect, as well as in every other in regard to the contract, he seems to have acted in good faith. And he was unable to deliver the number of barrels supposed, either through the loss stated, or an erroneous estimate of the quantity. But to exonerate R. from damages on this ground, it is enough to know that he did not bind himself to deliver any specific amount of freight. The probable amount is stated, or supposed, in the agreement, but there is no undertaking as to the quantity. Ibid.

66. The general principle adopted by civilized nations is, that the nature, validity, and interpretation of contracts, are to be governed by the laws of the country where the contracts are made, or to be performed. But the remedies are to be governed by the laws of the country where the suit is brought, or, as it is compendiously expressed, by the lex fori. Because an action of covenant will lie in Kentucky, on an unsealed instrument, it will not lie in another state, where covenant can only be brought on an instrument under seal. The U. S. v. Donally, 8 Peters, 361.

67. A contract was made by Orr for the delivery of rations for the use of the troops of the United States, "thirty days' notice being given of the post or place where the rations may be wanted." In an action on a bond with sureties, for a balance claimed to be due to the United States by the contractor, the United States introduced the testimony of a Mr. Abbot, and proved by him, that at the time when contracts were made for the supply of the United States troops, the contractors (as he believed) were then in formed of the fixed posts within the limits of the

68. R. executed a bond to D., conditioned that he would make him a fair and indisputable title to a certain tract of land, on or before the 1st of January, 1795; and if no conveyance was then made, that R. would stand indebted to D. in a certain sum of money, being the sum acknowledged to be paid to R. at the time of the contract. By the court: No other just interpretation can, under the circumstances, be put upon this language, than that the parties intended that R. should perfect his title to the land by a patent, and should make a conveyance of an indisputable title to D., on or before the first of January, 1795; and if not then made, the contract of sale was to be deemed rescinded, and the forty-five

General Principles.

pounds purchase-money was to be repaid to D. Holt and Wise v. Rogers, 8 Peters, 420.

75. Part performance has no other effect except that the plaintiff is thereby let in to prove that part of the agreement is not confessed, aliunde. Ibid.

76. If the agreement admitted in the answer differs from that stated in the bill, the plaintiff cannot have a decree, unless he can prove the agreement alleged by him, aliunde. Thompson v. Wood, 1 Peters' C. C. R. 380.

77. It is no excuse for non-performance of a contract to deliver "prime," "first class teas in Canton, that the season of the year when the teas were to have been delivered, was unfavourable to the best teas being at market. Gilpins v. Consequa, 1 Peters' C. C. R. 86.

78. The defendant contracted to deliver a certain number of boxes of teas, of first class, at stipulated prices. A subsequent agreement to diminish the quantity and price does not excuse his violating the contract as to quality. Youqua v. Nixon et al., 1 Peters' C. C. R. 221.

69. The brig Ann, of Boston, on a voyage from New Orleans to Madeira, &c., was unlawfully captured by a part of the Portuguese squadron, and was, with her cargo, condemned. Upon the remonstrance of the government of the United States, the claim of the owner for this capture was, on the 19th of January, 1832, admitted by the government of Portugal, to an amount exceeding $38,000, one-fourth of which was soon after paid. On the 27th January, 1832, the owner of the Ann and cargo, neither of the parties knowing of the admission of the claim by Portugal, made an agreement with the appellant, to allow him a sum a little below one-third of the whole amount of the sum admitted, as commissions, he agreeing to use his utmost efforts for the recovery thereof. At the time of this agreement, which was under seal, the owner of the Ann, H., was indebted to the appellant, A., $268, for services rendered to him in the course of a commercial agency for him. In the contract it was agreed that this claim should be released. Under the contract, A. received the one-fourth of the amount admitted to be due to H. by Portugal, and H. filed a bill in the circuit court of Rhode Island, to have the contract rescinded and delivered up to be cancelled, and the money received to be paid to him without deductions. The court made a decree in favour of H., on the payment of the $268 and interest. The supreme court affirmed the decree of the 81. Where an agreement is made to lend circuit court, being of opinion that the agree-money, and to take collateral security on proment had been entered into by both parties to it perty, and by a mistake a power of attorney only under a mistake, and under an entire ignorance is taken, and the party dies, equity will relieve of the allowance of the claim by the Portuguese government. It was without consideration. Services long and arduous were contemplated, but the object of these services had been attained. Allen v. Hammond, 11 Peters, 70.

79. Prize-money must be distributed according to some written agreement of the parties, otherwise it is distributable according to the 4th section of the prize act of 20th June, 1812, ch. 107. The Dash, 1 Mason's C. C. R. 4.

80. Where a sale of goods is made, and they are delivered, and an agreement is afterwards made to rescind the contract, the contract is not completely rescinded until the goods are re-delivered. Miller v. Smith, 1 Mason's C. C. R. 437.

the creditor, and enforce the original agreement against the administrators, where the estate is solvent. Hunt v. Ennis, Adm'r., 2 Mason's C. C. R. 244.

82. A sale was made of farm, upon a con70. A vendor is bound to know that he actu-tract of so much per acre, to be ascertained by ally has what he professes to sell. And even measurement. Afterwards, the parties agreed though the subject-matter of a contract be liable to waive any measurement, and the vendee took to a contingency, which may destroy it imme- the farm at the gross sum of $2500, supposing diately, if the contingency has happened the it to contain fifty acres, from the representations contract will be void. Ibid. of the vendor; and in the deeds of conveyance the land was said to contain forty-seven acres and a half, "more or less." Held, that as the vendor was not guilty of any fraudulent misrepresentation, but expressed his bona fide belief, the vendee was not entitled to any relief in equity, although the quantity turned out, upon subsequent measurement, to be forty and a half acres only, each party having been well acquainted with the local boundaries of the farm. Stebbins v. Eddy, 4 Mason's C. C. R. 414.

71. If a life-estate in land is sold, and, at the time of the sale, the estate is terminated by the death of the person in whom the right vested, a court of equity will rescind the purchase. Ibid.

72. If any one is bound to do a particular thing, he must either do it or offer to do it; and if no objections are made, he must show that he made a tender in a regular manner. Blight v. Ashley, 1 Peters' C. C. R. 16.

73. If an agreement to pay a debt is valid and subsisting, its legality and justice cannot be denied, without strong and substantial evidence to support such denial. Ibid.

83. Maine. A purchased ninety-nine hundredths of a tract of land of one hundred acres, belonging to the state, under a settler, and the state granted one hundred acres to the settler, 74. A copartner may, by an agreement, bind and the settler had granted one acre to B. his associates in relation to partnership concerns, Afterwards, A obtained from the state, with full because each partner is interested in the partner-knowledge of B's title, a grant of the whole ship effects. But this principle does not apply to persons acting under a delegated authority, and more especially when the act is not within the scope of their authority. Ibid.

land, the same being excepted in the deed of the settler to him. Held, that B was entitled, in equity, to have one acre conveyed to him. Dunlap v. Stetson, 4 Mason's C. C. R. 349.

General Principles.

84. It is essential to the validity of a contract, | Crawford v. The William Penn, 3 Wash. C. C. R. that the parties to it should have consented to 484. the same subject-matter in the same sense: they must have contracted ad idem. Hazard v. New England Marine Ins. Co., 1 Sumner's C. C. R.

218.

85. To sustain the vendee's allegation that the contract was abandoned by implication, the conduct of the vendor ought to be such as to justify a reasonable man in believing that he acquiesced. Garnett v. Mason et al., 2 Brockenb. C. C. R. 185.

86. If money is to be paid, or any act to be done on a certain day, and at a certain place, the legal time of performance is the last convenient hour of the day for transacting business. But if the parties meet at any part of the day, a tender and refusal at the time of meeting are sufficient. Savary v. Goe, 3 Wash. C. C. R.

140.

87. Action to recover the stipulated price of a quantity of looking-glass, which the plaintiff advertised as white glass of a superior quality, and which the defendant purchased after having particularly examined the same, signing an agreement stating the purchase, and the price to be paid on taking the glass away. On the following day one of the defendants returned, re-examined the glass, and said it was of inferior quality, and refused to comply with the agreement of the preceding day. The glass was, in fact, of very inferior quality. The court held, that the defendants having examined the glass, and given the agreement to purchase it, they could not afterwards claim to be relieved from the bargain, by the discovery that the quality of the glass was inferior, and that it was not worth the price they agreed to pay for it. houn v. Vechie et al., 3 Wash. C. C. R. 165.

92. Contracts made with prisoners of war, in the enemy's country, for subsistence, are binding. Ibid.

93. The defendant accepted an order to pay certain debts out of the proceeds of a bill of exchange, which bill was protested for non-payment. The plaintiff declared upon this promise. The bill had not been paid. The promise was at an end. The plaintiff failed in his action, so far as it was founded on the promise. Hutz v. Karthause, 4 Wash. C. C. R. 1.

94. Where the defendant promised to account for the proceeds of a bill of exchange remitted to him, as soon as the fate of the bill should be decided, the clear meaning of the undertaking was to pay, provided the bill should be paid. Ibid.

95. Where one of three partners entered into an agreement under hand and seal in the name of the partnership, for the sale of lands, with the consent of the other partners, either expressly given at the time, or recognised by them afterwards, it was the deed of all three, although there was but one signature; and the instrument was admitted in evidence in an action brought on the agreement for the purchase-money, proof of the consent of the other parties in the form stated having been given. Henry Darst et al. v. Roth, 4 Wash. C. C. R. 471.

96. The law of the place where a contract is made, is to be given as to the validity, nature, and construction of the contract; but the remedy on such contract is to be pursued according to the law of the place where the suit is brought. This is subject to the exception, where the conCal-tract is immoral or unjust. Van Reimsdyke v

88. The statement of the quality of the glass in the advertisement did not amount to a warranty, inasmuch as the defendants did not rely upon the advertisement, but on their own judgment, formed after examination. Ibid.

89. Upon a Canton contract to deliver teas, the quality of the sample chests to be selected by A, if A select and accept the chests of an inferior quality, there is an end of the warranty, and the Hong merchant could only be liable for a fraud, in imposing on the defendant teas apparently of a particular quality, but actually inferior. He could not be bound to deliver the selected teas, which might be inferior, and bound also to deliver teas of a better quality. Cheongwo v. Jones, 3 Wash. C. C. R. 359.

90. The law of the country where a contract is made, is the law of the contract wherever performance is demanded; and the same law which creates the change will be regarded, if it operate a discharge of the contract. Green v. Sarmiento, 1 Peters' C. C. R. 74.

91. Contracts made with an alien enemy are lawful, if made in a trade carried on under a license of the government, whether they arise directly or collaterally out of such licensed trade, or it the enemy with whom such contract is made, be in the hostile country by license of the government, or if the contract be a ransom bond.

Kain et al., 1 Gallis. C. C. R. 371.

97. When the contract is to be executed at a place different from that where it is made, the law of the place of execution will apply. Ibid.

98. If a contract is void at the place where it is made, it will be void everywhere; and what is a discharge of a contract in the place where it is made, will be of equal avail in every other place. Ibid. 375.

99. A state, by virtue of its general authority, may act between its own citizens in every other country secùs as to contracts between its citizens and foreigners, made in foreign countries. Ibid. 377.

100. A state of war puts an end to all executory contracts between the citizens of different countries. The Francis and Cargo, 1 Gallis. C. C. R. 448.

101. If upon a contract of sale, the purchaser to pay a part of the purchase-money, and give his bond for the balance, and agrees to give a mortgage upon the property for the balance, but fails to do it, and the vendor afterwards conveys the property to another, the court will decree the repayment of the sum paid, and that the bond be delivered up to be cancelled. Castor v. Mitchell, 4 Wash. C. C. R. 191.

102. The courts of the United States have equity jurisdiction to rescind a contract on the ground of fraud, after one of the parties to it had