Tilghman C. J.
The plaintiff in this case, stands in the situation of a person applying to a court of equity, for a decree to compel the specific performance of a contract for the purchase of two tracts of land from the defendant., I agree with Judge Teates, before whom the cause was tried, that there is nothing in the evidence reported by him, which Would authorize the court to say that the contract was void. The plaintiff might undoubtedly support an action for damages for breach of the agreement. But a contract may be binding at law, and yet a court of equity may not, think it reasonable to decree a specific performance. If this case had been brought before me as a chancellor, I should have felt considerable difficulty in forming a decision. [Here the Chief Justice gave the preceding statement of the facts, and then proceeded as follows.} I have said that as a chancellor, I should feel difficulty on this subject; because although I cannot say the defendant was drunk, or that there is express evidence of an unfair advantage being taken of him, or that the price was very inadequate, yet there are circumstances in this transaction, which I do not like. I do not like the sending for a man to a tavern, and bargaining for the land which supported his family, amidst the drinking of bitters early in the morning; and I do not like a contract by which a farmer is involved in the folly of buying a store of goods. If it appeared that the plaintiff had been put to expense or damage, in pursuance of the contract, before the defendant had expressed his resolution to be off, the case would have been much stronger; but quick repentance followed the rash engagement, and of this the plaintiff was informed. I will not say, nor have I made up my mind, how a chancellor ought to decree, under all these circumstances. But that is not .precisely the point before us. The jury found for the defendant, which strengthens his case very much. I am now to consider whether that verdict is so clearly wrong, that a new trial should be granted. I do not know on what ground the jury formed their opinion. It is said by the plaintiff’s counsel that they Undertook to pronounce the contract as altogether void. If that was ascertained on the record, and the case could be reduced to that point, I should have no hesitation in saying that there should be a new trial. But this is impossible. We cannot say on what point the verdict [134]*134was founded. Suppose now the jury were of opinion, that 'the contract was so far binding, as to make the defendant answerable in an action for damages, but that it was not a case, in which the plaintiff was entitled to a specific performance. I then ask n^self, whether I am clear, that on this ground the jury were wrong. I have thought a good deal of it, and I cannot say that I am. It is one of those cases in which I would not interfere with the verdict, whether it was for plaintiff or defendant. The result of my reflections is an opinion that the verdict should stand; and I am the more inclined to this, as the plaintiff is not concluded by this judgment, but may try the matter once more in a new ejectment.
Brackenridge J.
I cannot dissent from the law as laid down by the Judge who held the Circuit Court upon the trial of this cause, and my understanding of the law would have been given to the same effect in a charge to the jury. But I incline to think my impressions would have been more favourable to the defendant on the equity of the particular case. Be this as it may, I should not have thought myself warranted in setting aside a verdict found by the jury in favour of the defendant. It is impossible on an appeal to have the case so clearly and completely before one, even from the most correct and the fullest notes, as it appeared on the trial; and therefore it ought to be with much hesitation that we depart from what the Judge has thought reasonable in the exercise of his discretion. But it would seem to me that the granting a new trial in this case was not sufficiently distinguished in the mind of the judge, from the granting a new trial where principles of law only were in question. The question in this case resolved itself in a great measure into a question of fact, the fairness, the open dealing, the honesty, of the transaction. When the heart revolts at the inequality of a contract, taking into view the parties, the occasion, and all considerations, there cannot be said to be equity. The inequity may be felt where it cannot so well be pointed out. The advantages were all on the side of the plaintiff in this case, on the score of opportunity of information, from his residence, and his occupation as a trading person. I am impressed with the idea of some management to brjng about the bargain. It is evident that the plaintiff thought [135]*135he had got an advantage, from his unwillingness to allow the least time as a locus penitentice to the unfortunate vendor. He stuck to his article, he made no child’s bargain &c. It was the defendant’s place of residence. On quitting possession of an earthly spot where we have lived, who is there who does not cast a “ longing lingering look behind.” The “ advena possessor agelli” cannot but affect the mind. Some indulgence to the resipiscence of the heart ought to be allowed. Had I been a chancellor, and the case before me as I have it in my mind, I should have hesitated to decree an execution of the contract, but rather have left the plaintiff to his article and to damages.
It is not a case where an individual, on the faith of the contract, has made sale of property in order to raise money, or to change residence. In a case where the conduct of the party was clear of all imputation or suspicion of undue advantage taken, or where he has suffered injury by the causeless and wanton dereliction of an agreement by the party making it, I would be willing to have it carried into effect; and there might be a case, where contrary to the sense of the jury, I might so far insist upon it, as to give the chance of another trial. But I take it, as has been already hinted, that after a verdict, the case is not before the judge, as it was on his delivering his charge. He has the sense of the country against him, which country the jury are, and the sense of the country in a matter of equity. This consists in exceptions to general principles. A sense of right and wrong in the common mind goes a great way to assist the deductions of the understanding. The application of the principle must be wrong, where the feelings of humanity cannot be reconciled to it. In ascertaining the truth of facts, and in weighing the equity arising from them, the law as it is in Pennsylvania by the intervention of a jury in an equity case, has the advantage greatly over a decision by a chancellor; and the people are tenacious of it. I admit the filing the petition or bill upon oath, and the answer upon oath by the defendant, are in some cases advantages which we have not; and it has been thought by some advisable to have this given by an act of the legislature; but a jury trial has the advantage of viva voce testimony, which is of incalculable moment in the elicitation of truth, and the forming an estimate of the perception, the [136]*136memory, and the grounds of belief in a witness. The asceftaining the equity of a case depends with us upon two tribunals, that of- the court and the jury, constituting one forum. Often there are cases where the jury may be considered the most competent; the case before me I think one; and therefore on the trial I should have left it at least as much to them, as the judge did.
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Tilghman C. J.
The plaintiff in this case, stands in the situation of a person applying to a court of equity, for a decree to compel the specific performance of a contract for the purchase of two tracts of land from the defendant., I agree with Judge Teates, before whom the cause was tried, that there is nothing in the evidence reported by him, which Would authorize the court to say that the contract was void. The plaintiff might undoubtedly support an action for damages for breach of the agreement. But a contract may be binding at law, and yet a court of equity may not, think it reasonable to decree a specific performance. If this case had been brought before me as a chancellor, I should have felt considerable difficulty in forming a decision. [Here the Chief Justice gave the preceding statement of the facts, and then proceeded as follows.} I have said that as a chancellor, I should feel difficulty on this subject; because although I cannot say the defendant was drunk, or that there is express evidence of an unfair advantage being taken of him, or that the price was very inadequate, yet there are circumstances in this transaction, which I do not like. I do not like the sending for a man to a tavern, and bargaining for the land which supported his family, amidst the drinking of bitters early in the morning; and I do not like a contract by which a farmer is involved in the folly of buying a store of goods. If it appeared that the plaintiff had been put to expense or damage, in pursuance of the contract, before the defendant had expressed his resolution to be off, the case would have been much stronger; but quick repentance followed the rash engagement, and of this the plaintiff was informed. I will not say, nor have I made up my mind, how a chancellor ought to decree, under all these circumstances. But that is not .precisely the point before us. The jury found for the defendant, which strengthens his case very much. I am now to consider whether that verdict is so clearly wrong, that a new trial should be granted. I do not know on what ground the jury formed their opinion. It is said by the plaintiff’s counsel that they Undertook to pronounce the contract as altogether void. If that was ascertained on the record, and the case could be reduced to that point, I should have no hesitation in saying that there should be a new trial. But this is impossible. We cannot say on what point the verdict [134]*134was founded. Suppose now the jury were of opinion, that 'the contract was so far binding, as to make the defendant answerable in an action for damages, but that it was not a case, in which the plaintiff was entitled to a specific performance. I then ask n^self, whether I am clear, that on this ground the jury were wrong. I have thought a good deal of it, and I cannot say that I am. It is one of those cases in which I would not interfere with the verdict, whether it was for plaintiff or defendant. The result of my reflections is an opinion that the verdict should stand; and I am the more inclined to this, as the plaintiff is not concluded by this judgment, but may try the matter once more in a new ejectment.
Brackenridge J.
I cannot dissent from the law as laid down by the Judge who held the Circuit Court upon the trial of this cause, and my understanding of the law would have been given to the same effect in a charge to the jury. But I incline to think my impressions would have been more favourable to the defendant on the equity of the particular case. Be this as it may, I should not have thought myself warranted in setting aside a verdict found by the jury in favour of the defendant. It is impossible on an appeal to have the case so clearly and completely before one, even from the most correct and the fullest notes, as it appeared on the trial; and therefore it ought to be with much hesitation that we depart from what the Judge has thought reasonable in the exercise of his discretion. But it would seem to me that the granting a new trial in this case was not sufficiently distinguished in the mind of the judge, from the granting a new trial where principles of law only were in question. The question in this case resolved itself in a great measure into a question of fact, the fairness, the open dealing, the honesty, of the transaction. When the heart revolts at the inequality of a contract, taking into view the parties, the occasion, and all considerations, there cannot be said to be equity. The inequity may be felt where it cannot so well be pointed out. The advantages were all on the side of the plaintiff in this case, on the score of opportunity of information, from his residence, and his occupation as a trading person. I am impressed with the idea of some management to brjng about the bargain. It is evident that the plaintiff thought [135]*135he had got an advantage, from his unwillingness to allow the least time as a locus penitentice to the unfortunate vendor. He stuck to his article, he made no child’s bargain &c. It was the defendant’s place of residence. On quitting possession of an earthly spot where we have lived, who is there who does not cast a “ longing lingering look behind.” The “ advena possessor agelli” cannot but affect the mind. Some indulgence to the resipiscence of the heart ought to be allowed. Had I been a chancellor, and the case before me as I have it in my mind, I should have hesitated to decree an execution of the contract, but rather have left the plaintiff to his article and to damages.
It is not a case where an individual, on the faith of the contract, has made sale of property in order to raise money, or to change residence. In a case where the conduct of the party was clear of all imputation or suspicion of undue advantage taken, or where he has suffered injury by the causeless and wanton dereliction of an agreement by the party making it, I would be willing to have it carried into effect; and there might be a case, where contrary to the sense of the jury, I might so far insist upon it, as to give the chance of another trial. But I take it, as has been already hinted, that after a verdict, the case is not before the judge, as it was on his delivering his charge. He has the sense of the country against him, which country the jury are, and the sense of the country in a matter of equity. This consists in exceptions to general principles. A sense of right and wrong in the common mind goes a great way to assist the deductions of the understanding. The application of the principle must be wrong, where the feelings of humanity cannot be reconciled to it. In ascertaining the truth of facts, and in weighing the equity arising from them, the law as it is in Pennsylvania by the intervention of a jury in an equity case, has the advantage greatly over a decision by a chancellor; and the people are tenacious of it. I admit the filing the petition or bill upon oath, and the answer upon oath by the defendant, are in some cases advantages which we have not; and it has been thought by some advisable to have this given by an act of the legislature; but a jury trial has the advantage of viva voce testimony, which is of incalculable moment in the elicitation of truth, and the forming an estimate of the perception, the [136]*136memory, and the grounds of belief in a witness. The asceftaining the equity of a case depends with us upon two tribunals, that of- the court and the jury, constituting one forum. Often there are cases where the jury may be considered the most competent; the case before me I think one; and therefore on the trial I should have left it at least as much to them, as the judge did. Under the impressions I now have, I would not have granted a new trial. Had the verdict been for the plaintiff, I should have been more inclined to set that aside, though I would not have done it; but I certainly cannot reconcile it to myself to sanction the setting aside a verdict for the defendant. I think therefore the appeal from the judgment of the Circuit Court ought to be sustained, and that judgment for the defendant ought to be entered.
The above are the ideas which I noted down upon the argument, before I had any intimation from the Chief Justice oh the inclination of his mind upon the subject, and at the same time without having it in my power to examine the authorities cited, or to consult others which might be found. But I find myself irresistibly impressed with the idea of circumvention on the part of the plaintiff; and I also take it into view, that the consideration, if I mistake not, w^s not altogether money, but goods out of the plaintiff’s store, the price of the parcels to be fixed; so that the contract does not sound in such certainty, if I may so express it, as to require no arrangement in order to come at the consideration, reduced to money, which was to be paid. As I reflect more upon it, my repugnance grows the stronger to the idea of enforcing the agreement. So far from it, that I take it the damages would be but slight, that a jury would be disposed to give. The plaintiff had in his mind the calculations of the rise of property from a turnpike, which the defendant does not seem to have thought of; and of getting off the remnant of a store, which is not equal to cash even at the invoice-1 prices. I think the bargain therefore hard, and accompanied with such circumstances, as will justify a court in refusing to lend their aid to the carrying it into effect.
Decision reversed and Judgment for defendant.