The opinion of the Court was delivered by
Gibson, C. J.
The verdict, in this instance, is avowedly for the price of the land; but there is a vice in it, as well as in the cause of action, which must eventually preclude a recovery. Defence upon equitable grounds may be taken to an action for purchase money even at common law; and with greater reason it may be taken to such an action where it is employed to perform the office of a bill for specific execution. The first inquiry, then, is, what would a chancellor decree on all the circumstances of the case disclosed by the evidence ?
The decisions on the subject of misrepresentation as an answer to a bill for specific performance, are not entirely consistent with each other. In Wellingham v. Joyce, (3 Vez. 168), an agreement for a lease, which had been procured by representing the applicant to have long been the tenant of the person who recommended him, and punctual in the payment of his rent, was not deemed proper for specific performance, because it was thought the respondent would not have entered into the agreement had he known, what was true in fact, that the applicant had been the tenant of the person only a short time, and had been distrained for the rent and taxes. On the same principle was Phillips v. Buckingham, (1 Vern. 227), in which it appeared that the vendor had previously broken off a treaty with the same purchaser on a difference about the price; on which the latter procured Chancellor Nottingham’s secretary to negotiate the purchase in the name of the chancellor’s son, to whom the vendor professed himself willing to part with the [483]*483estate for less than he would take from another, and desired the chancellor to name the terms; but the lord keeper refused to execute the contract. Lord Thurlow attempted to cast a shade on the authority of that case in Irnham v. Child, (1 Bro. C. C. 95); but it is sustained by Lord Bathuest’s decision in Eyre v. Pop-ham, in the appended note. The' principle, however, seems to have been narrowed' by the' vice-chancellor in Fellowes v. Gwydyr, (1 Simons 63), who enforced the contract, though the purchaser had obtained peculiarly favourable terms by untruly representing himself to be the agent of a person whom the vendor was willing to oblige, because the purchaser did not know that he could not have obtained the same terms in his own name. I am unable to see the justice of that, or what the vendor had to do with the knowledge or motive of one who had decoyed him into a bargain he would not otherwise have, made, by false pretences. No untruth can be entirely blameless; and he who practises a gratuitous deceit must answer the consequences of it, independently of all consideration of his motive. And such is the principle of Twining v. Morris, (3 Bro. P. C. 326), in which the master of the rolls refused to execute a purchase, because the vendor’s agent had bid for the purchaser, and unintentionally cast a damp on the sale, by creating a belief in the bystanders that he was bidding in the estate for the vendor. Yet there had been no design to represent anything ; notwithstanding which, it was thought to be enough that the vendor had suffered by a misconception not of his own making. It is difficult to conceive how there could have been misrepresentation in Fellowes v. Gwydyr, without a sinister motive; and it was said by Lord Mannees, in O’Rourke v. Percival, (2 Ball & Beatty 62), to be an established principle of the court, not to decree specifically where it does not appear that the party calling for the chancellor’s aid has acted, not only fairly, but in a manner clear of all suspicion. 'The preceding cases go to misrepresentation as to the person of the purchaser; but they disclose a principle of general application, that where the assent of a party has been procured through misapprehension induced by the conduct of him who insists on the bargain, a chancellor will leave him to his remedy at law.
But misrepresentation of the thing sold is equally decisive. Thus in Shirley v.Stratton, (1 Bro. C. C. 440), where the vendor represented the estate as clearing £90, but suppressed the fact that a wall on it was to be repaired at an annual expense of half the sum, the court dismissed the bill. And in Shovel v. Bogan, (2 Eq. Ca. Abr. 688), a false representation of the quantity, the land being sold by the acre, was allowed to have the same effect. So in Buxton v. Lister, (3 Aik. 382), purchasers who had been induced to agree to an exorbitant price for timber trees by the false assurance of the seller that certain timber-merchants had valued the lots at so much, were not held to specific execution. I have found no [484]*484case of misrepresentation as to the quality of the soil but Scott v. Hanson, (1 Simons 13), and there the estate was represented to be uncommonly rich watered meadow-land; but it was in truth only imperfectly watered. The vice-chancellor agreeing with Sir William Scott in Trower v. Newcome, (3 Mer. 704), that an indefinite and vague representation was to be treated by the purchaser only as a ground of inquiry, was of opinion that the expression “ uncommonly rich watered meadow-land,” had regard, not to the watering, but to the soil; and considered the whole as a loose observation of the vendor or the auctioneer, on which the vendee ought not to have placed reliance. Undoubtedly a vendor may praise to the most extravagant extent, qualities which are susceptible of inspection; but a misrepresentation of an occult quality, in regard to which the vendee is not supposed to buy on his own judgment, would be followed by very decisive consequences. Now what is the case at bar ?
The overture came from the vendor. He wrote to the vendee, an iron-master who had been hunting ore in the neighbourhood, that he had a great deal of it on his land, of a fine quality, and such as the iron-masters in Perry county were getting; offered to sell him his farm, and invited him to view it. The vendee came, and was shown the tail of a vein at a place where there had been an opening, but it was partly filled up. He was assured that there was a very great quantity of it, and that the vein was a foot thick; relying upon which, and declaring that the ore, not the land, was his object, he. struck the bargain. The mine was on lease to a man of the name of Conwall, who had desisted from working it, and who testified at the trial that the produce was not worth the expense; but this fact, so far as concerned the scarcity, was not communicated. Such is the case made out by the proofs on the part of the defendant.
The material circumstance added to it by the proofs on the part of the plaintiff, is, that the defendant was persuaded to take the risk of the ore on himself, and to take the property subject to Con-wall’s lease. But what matters such a stipulation, if the whole contract was procured by misrepresenting the fact which was the sole inducement to the purchase? The mine was found to be worthless. The thickness of the vein proved to be, not only a vast deal less than a foot, but so inconsiderable as not to be worth the working of it; and the object of the purchase, induced, as it was, by the vendor’s positive assertion of a fact which he at least did not know to be true, had utterly failed. Was not the bargain, then, procured by misrepresentation?
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The opinion of the Court was delivered by
Gibson, C. J.
The verdict, in this instance, is avowedly for the price of the land; but there is a vice in it, as well as in the cause of action, which must eventually preclude a recovery. Defence upon equitable grounds may be taken to an action for purchase money even at common law; and with greater reason it may be taken to such an action where it is employed to perform the office of a bill for specific execution. The first inquiry, then, is, what would a chancellor decree on all the circumstances of the case disclosed by the evidence ?
The decisions on the subject of misrepresentation as an answer to a bill for specific performance, are not entirely consistent with each other. In Wellingham v. Joyce, (3 Vez. 168), an agreement for a lease, which had been procured by representing the applicant to have long been the tenant of the person who recommended him, and punctual in the payment of his rent, was not deemed proper for specific performance, because it was thought the respondent would not have entered into the agreement had he known, what was true in fact, that the applicant had been the tenant of the person only a short time, and had been distrained for the rent and taxes. On the same principle was Phillips v. Buckingham, (1 Vern. 227), in which it appeared that the vendor had previously broken off a treaty with the same purchaser on a difference about the price; on which the latter procured Chancellor Nottingham’s secretary to negotiate the purchase in the name of the chancellor’s son, to whom the vendor professed himself willing to part with the [483]*483estate for less than he would take from another, and desired the chancellor to name the terms; but the lord keeper refused to execute the contract. Lord Thurlow attempted to cast a shade on the authority of that case in Irnham v. Child, (1 Bro. C. C. 95); but it is sustained by Lord Bathuest’s decision in Eyre v. Pop-ham, in the appended note. The' principle, however, seems to have been narrowed' by the' vice-chancellor in Fellowes v. Gwydyr, (1 Simons 63), who enforced the contract, though the purchaser had obtained peculiarly favourable terms by untruly representing himself to be the agent of a person whom the vendor was willing to oblige, because the purchaser did not know that he could not have obtained the same terms in his own name. I am unable to see the justice of that, or what the vendor had to do with the knowledge or motive of one who had decoyed him into a bargain he would not otherwise have, made, by false pretences. No untruth can be entirely blameless; and he who practises a gratuitous deceit must answer the consequences of it, independently of all consideration of his motive. And such is the principle of Twining v. Morris, (3 Bro. P. C. 326), in which the master of the rolls refused to execute a purchase, because the vendor’s agent had bid for the purchaser, and unintentionally cast a damp on the sale, by creating a belief in the bystanders that he was bidding in the estate for the vendor. Yet there had been no design to represent anything ; notwithstanding which, it was thought to be enough that the vendor had suffered by a misconception not of his own making. It is difficult to conceive how there could have been misrepresentation in Fellowes v. Gwydyr, without a sinister motive; and it was said by Lord Mannees, in O’Rourke v. Percival, (2 Ball & Beatty 62), to be an established principle of the court, not to decree specifically where it does not appear that the party calling for the chancellor’s aid has acted, not only fairly, but in a manner clear of all suspicion. 'The preceding cases go to misrepresentation as to the person of the purchaser; but they disclose a principle of general application, that where the assent of a party has been procured through misapprehension induced by the conduct of him who insists on the bargain, a chancellor will leave him to his remedy at law.
But misrepresentation of the thing sold is equally decisive. Thus in Shirley v.Stratton, (1 Bro. C. C. 440), where the vendor represented the estate as clearing £90, but suppressed the fact that a wall on it was to be repaired at an annual expense of half the sum, the court dismissed the bill. And in Shovel v. Bogan, (2 Eq. Ca. Abr. 688), a false representation of the quantity, the land being sold by the acre, was allowed to have the same effect. So in Buxton v. Lister, (3 Aik. 382), purchasers who had been induced to agree to an exorbitant price for timber trees by the false assurance of the seller that certain timber-merchants had valued the lots at so much, were not held to specific execution. I have found no [484]*484case of misrepresentation as to the quality of the soil but Scott v. Hanson, (1 Simons 13), and there the estate was represented to be uncommonly rich watered meadow-land; but it was in truth only imperfectly watered. The vice-chancellor agreeing with Sir William Scott in Trower v. Newcome, (3 Mer. 704), that an indefinite and vague representation was to be treated by the purchaser only as a ground of inquiry, was of opinion that the expression “ uncommonly rich watered meadow-land,” had regard, not to the watering, but to the soil; and considered the whole as a loose observation of the vendor or the auctioneer, on which the vendee ought not to have placed reliance. Undoubtedly a vendor may praise to the most extravagant extent, qualities which are susceptible of inspection; but a misrepresentation of an occult quality, in regard to which the vendee is not supposed to buy on his own judgment, would be followed by very decisive consequences. Now what is the case at bar ?
The overture came from the vendor. He wrote to the vendee, an iron-master who had been hunting ore in the neighbourhood, that he had a great deal of it on his land, of a fine quality, and such as the iron-masters in Perry county were getting; offered to sell him his farm, and invited him to view it. The vendee came, and was shown the tail of a vein at a place where there had been an opening, but it was partly filled up. He was assured that there was a very great quantity of it, and that the vein was a foot thick; relying upon which, and declaring that the ore, not the land, was his object, he. struck the bargain. The mine was on lease to a man of the name of Conwall, who had desisted from working it, and who testified at the trial that the produce was not worth the expense; but this fact, so far as concerned the scarcity, was not communicated. Such is the case made out by the proofs on the part of the defendant.
The material circumstance added to it by the proofs on the part of the plaintiff, is, that the defendant was persuaded to take the risk of the ore on himself, and to take the property subject to Con-wall’s lease. But what matters such a stipulation, if the whole contract was procured by misrepresenting the fact which was the sole inducement to the purchase? The mine was found to be worthless. The thickness of the vein proved to be, not only a vast deal less than a foot, but so inconsiderable as not to be worth the working of it; and the object of the purchase, induced, as it was, by the vendor’s positive assertion of a fact which he at least did not know to be true, had utterly failed. Was not the bargain, then, procured by misrepresentation?
The circumstances of the case resemble those of Young v. Clerk, (Free, in Ch. 538), which was a bill to have specific performance of articles for a lease. The defendant, who had not seen the land or known anything of its value, viewed it in company with the plaintiff, who had been tenant to the preceding owner, then re[485]*485cently dead, and who gave the defendant the only information he received from anyone. Having no judgment of his own as to the annual value, he asked to see the counterparts of the leases to the under-tenants, but was shuffled off, and prevailed on to execute the articles; shortly after which he discovered that he had been greatly imposed on. Lord Macclesfield was clearly of opinion that he was not bound to enforce articles when unreasonable, or founded in fraud, and when it would be obviously unconscionable to assist the party; and that as the articles before him were of that sort, though no direct fraud was proved, it was proper to leave the parties to their remedies at law. The case before us, however, is much stronger, in respect that the vendee was compelled to rely on the representation of the vendor, while the defendant in Young v. Clerk might, by insisting on the production of the leases, or by consulting men of judgment, have ascertained the annual value elsewhere. Brereton v. Cowper, (2 Bro. P. C. 535), is another case of this stamp. These show that to assert for a truth what the party does not know to be so, is equivalent to the assertion of a known falsehood; and that a chancellor will not execute a purchase where the vendee has relied on the vendor’s unfounded assertion.
Principles of equity are more delicate and subtle in their texture than rules of law; and where the application of them to the facts and circumstances of a cause is left to the unpractised hand, of a jury, such a verdict as the present may well be expectéd.. The proper direction would have been, that, taking the evideñcp on both sides to be true, the plaintiff could not recover.
The omission to tender the conveyance at the day would,be unimportant, though the old doctrine that time cannot be of the essence of the contract, has given place to a more reasonable one. Perhaps the proper rule has been laid down by Chancellor Kent, in Benedict v. Lynch, (1 Johns. Ch. R. 374), that where the applicant for specific performance has omitted to perform his own part, without being able to assign a justification or excuse for it; and where there is nothing in the acts or conduct of the other party which amounts to an acquiescence in the delay, the court will not interfere. But was there not a justification of the plaintiff’s omission in the defendant’s notice through his agent that he would not abide by the bargain 1 Instead of a monition that punctual performance was expected, it was a disavowal of the Contract, and a waiver of all performance whatever. It was said by Mr Justice Washington, in Blight v. Ashley, (Peters’ C. C. Rep. 24), that a man bound to do a thing must do it, or offer to do it, unless the other has dispensed with it beforehand. The principle that a man is not bound to go through the form of a tender which he has been told would be rejected, is a common one, and exemplified in Buller’s Nisi Prius 96, by the casé of a tenant who' has waived a tender of notice to quit by disclaiming the tenancy and attorning to a stranger. Had not the conveyance been faulty in misdescri[486]*486bing one of the grantees, it might have been tendered at any time before suit brought, or perhaps at the trial.
But the decisive defect is in the verdict, not because it is for instalments not demandable at the suing out of the writ, for the action was brought to enforce, not only payment of the instalments due, but the giving of security for those to come; and this could be done only by a conditional verdict for the whole. But the condition imposed by the jury, is one which a chancellor would not have imposed. The verdict is for the gross amount, time being given to deliver bonds and a mortgage for the immature instalments, to be executed by Mr Morgan and the defendant himself, in order to meet the stipulation filed in the cause by the plaintiff. But Mr Morgan is a stranger to the cause and the contract; and I take it, a party is not compellable by attachment or a penalty to procure the joinder of another whose actions he cannot control. The old doctrine on the subject has given place to a more rational one. That a vendor shall not be forced to procure the joinder of his wife, was determined by this court in Seirer v. Clark, (7 Watts 107); and there is no room for a difference, in this respect, between a wife and a stranger. A party who covenants to procure such a joinder, is doubtless liable for a failure in damages proportionate to the loss; but not stipulated damages in the shape of the vhole purchase money, which may be exorbitant. Had the plain- \ ff entitled himself to specific performance of the other parts of the tL atract, and been content to take such bonds and such a mortC01 'e as the defendant could give him, a verdict to that effect would §aS > been well; but he was not entitled to anything further, have
Judgment reversed.