IN equity. The bill, after setting forth a variety of
transactions between the parties, relative to a tract of land,
mills, and mill race, in Dauphin county, states, that on the trial
of a writ of partition for the premises, they consented to withdraw
a juror, and entered into the following agreement, dated the 19th
of November 1790:
'It is mutually agreed, that judgment
shall be entered for the defendant on the day in bank, on the 3d of
January next, unless the said plaintiff, or Robert Ralston, his
assignee, shall previous thereto, by such good and unexceptionable
securities, in such sum, and in such manner, as shall be approved
of by the honourable Judges of this Court, engage for, and secure,
the payment of one moiety of all monies, which the defendant hath
advanced, or expended, or shall appear to be reasonably entitled
to, for, or by reason of, his improvement of the lands in question,
or for any matter relative thereto, or of any other lands held in
common, or jointly, between the said parties, within six months
from the said 3d day of January next. But, in case such
unexceptionable security shall be given, and a question shall arise
as to the quantum of the monies, to which the defendant shall be
entitled, the John Kean, Joshua Elder, and John Carson, gentlemen,
or any two of them, shall determine the said sum, on full hearing
of the said parties, their witnesses, and proofs. And in case of a
full conformity thereto,
Page 4 U.S.
345, 346
to, and the money being fully paid and discharged as aforesaid,
within the said period of six months, and not otherwise, that then
judgment shall be entered in this action, not only for the lands in
the declaration mentioned, but of all lands and mills held jointly,
or in common between them the said parties, by virtue of any
article between them, or between them and John Fisher, made. But if
the monies so due shall not be paid and discharged within the said
period, the defendant shall hold the said lands free and discharged
from the claims of the said plaintiff, and all persons claiming
under him; and judgment shall in such case be entered for him in
this action.'
It, also, appeared from the pleadings and exhibits that the
bond, required by the agreement, was duly executed on the part of
the plaintiff; that the referees undertook the business of the
reference; and that on the 13th of April 1791, the following report
was filed:
'We the referees, &c. report
that, after hearing the parties, their allegations, and witnesses,
and investigating their accounts and vouchers, we are of opinion,
that George Fry is reasonably entitled to the sum of 3646l. 6s. 2
3/4d. specie; that being the one moiety, or half part, of his
expenditures on the lands, mills, and their appurtenances, in
question, after giving John Hollingsworth credit for the money by
him expended on the same lands.'
It, also, appeared, that the plaintiff filed a number of
exceptions, which the Supreme Court, after argument, over-ruled on
the 2d of July 1791, and gave judgment on the report; and that, on
the 26th of September 1796, the complainant sent his son, to tender
to the defendant, the amount of the report, in his favour; which
the defendant refused to accept.
Upon these general premises, the bill proceeded to complain,
that the defendant had appeared in the Supreme Court, by his
counsel, on the 2d of July 1791, alleging the exceptions to the
report to be untrue, whereas the complainant avers that they were
true; that although notice had been given to produce books and
accounts, none were produced on the hearing in Court; that the
conduct of the referees was improper in various particulars; that
the books, accounts, and statements, laid by the defendant before
the referees, were untrue and fraudulent; that the defendant
suppressed several material documents, which he alone possessed;
and that the value of a moiety of the property in dispute is at
least 10,000l.
The bill concluded with a prayer for a perpetual injunction,
against all proceedings on the judgment; for a discovery and
account; for a partition of the premises; and for general
relief.
Page 4 U.S.
345, 347
To this bill, the defendant filed a plea and answer: 1st. Plea
in bar, a former bill in equity, for the same cause, filed by the
complainant on the 24th of April 1792; demurrer to the bill, and
joinder in demurrer; and a decree, in April term 1796, pronouncing
the demurrer to be sufficient, and dismissing the bill; which
decree remains unreversed and in full force. 2d. Plea in bar, the
judgment of the Supreme Court of Pennsylvania, (a competent
tribunal) upon the agreement, reference, and report, which judgment
remains still in force; with an averment that the complainant did
not, within six months after making, or filing, the report, nor
after the exceptions were over-ruled (which exceptions contained
all the matter alleged in the bill) and the judgment rendered, pay,
or offer to pay, to the defendant, the said sum of 3646l. 6s. 2
3/4d. or any part thereof. 3d. Answer, That the judgment was fairly
obtained; that the defendant did not submit to the referees any
books, accounts, or statements, that were untrue, or fraudulent,
nor suppress any material documents; that on the 26th of September
1796, the complainant's son came to him with a bank bill; but never
before that time; and that the defendant had been exposed to all
intermediate expenses and casualties, &c.
A general replication was filed; and, after argument, the
following opinion was delivered, Judge PETERS, declining to take a
part in the decision:
PATERSON, Justice.
The great rule of interpretation, with respect to deeds and
contracts, is to put such a construction upon them as will
effectuate the intention of the parties, if such intention be
consistent with the principles of law. In the present case, there
is no difficulty in coming at the intention, as it is clearly and
forcibly expressed in the agreement, and is capable of receiving
one construction only. The time of payment is made a substantial,
and not a mere formal, circumstance; it enters into the essence of
the contract; and, therefore, must be observed. The Court cannot
decree against the legal and express stipulation of the parties
themselves. The situation of the parties, the nature of the
property, and the speculative spirit of the project, were powerful
inducements for drawing up the agreement, in the plainest and
strongest terms, so as to leave no doubt as to the intention, and
to render the time of performance a cardinal point.
Again, if the agreement would admit of another construction, the
complainant, under the circumstances of the case, comes too late to
avail himself of it. The door of equity cannot remain open for
ever. The complainant did not make a tender of the money, till a
lapse of five years after the termination of the time limited by
the contract. So far was he from using legal diligence, that he has
been guilty of gross delay. In cases of the present kind, equity
will not suffer a party to lie by till the event of the
Page 4 U.S.
345, 348
experiment shall enable him to make his election with certainty
of profit one way, and without loss any way. This mode of procedure
is unfair; contrary to natural justice, and in exclusion of
mutuality.
There is a strange mixture of legal and equitable powers, in the
Courts of law of this state. This arises from the want of a
distinct forum to exercise chancery jurisdiction; and, therefore,
the common law Courts equities as far as possible. Whether, if
relief be proper, the Supreme Court of this state could have
extended it to the complainant, it is unnecessary to determine.
Thus much, however, might and ought to have been done, on the part
of the complainant; he ought, when notice was given for him to show
cause why judgment should not be entered, to have laid the equity
of the case before the judges of that Court, who, if they thought
proper, might have deferred the entering of judgment, or ordered it
to be entered on terms, to wit, to be vacated on payment of the
awarded sum, by a limited period. But the complainant, although he
had previous notice, did not avail himself of an appeal to the
discretion of the Court; but suffered judgment to pass against him,
without making any objection.
There being no equity in the complainant's case, his bill must
be dismissed, with costs.
