The master reported to the court at its March Term, 1867, that he had found the aforesaid excess to be 12,710 square feet of land; that the amount due therefor, with interest, was $850.23; and that he had awarded, determined, and appointed that the said Staigg pay to the said Lawrence said sum of money on or before the 20th day of April, 1867, with interest to the day of payment.
At the September Term, 1870, of the court, this report was, on motion of the respondent, confirmed, and upon motion of the complainant the master was ordered to proceed in the execution of the decree sending the cause to him as a master, and to report his doings under the decree subsequent to the date of said report.
In accordance with said order, the master made a second report from which the following extracts are taken: —
"The undersigned, master in chancery in the above entitled cause, appointed in and by virtue of the decree of this court made
at its September Term, A.D. 1866, in addition to his report March 15, 1867, now respectfully further reports: . . . .
"That on the 29th day of April, 1867, the complainant made application to the undersigned to approve a deed to be executed by the defendant to the complainant, pursuant to the provisions of the last clause of said decree, and to ascertain the amount of money paid by the defendant to the complainant for the 43,918 square feet of land in said decree mentioned, and to compute the interest thereon as provided in said clause of said decree.
"That on May 16, 1867, at twelve o'clock, noon, at his office in Newport in said county, having duly notified the parties in said cause, . . . . the undersigned proceeded to consider said application in the presence of said complainant in person, and of James H. Parsons, Esq., the counsel of the defendant, who were both fully heard in the premises.
"That at said meeting, before any other proceedings were had, the complainant placed on the table in the office of the undersigned, American gold coin amounting to $3,051, as he then stated, and which he said he supposed would cover the whole sum which would be payable to the defendant under said last clause of said decree — the exact sum not having been then ascertained. The amount of said coin was admitted by the defendant's counsel to be as stated by the complainant, as aforesaid. The complainant then tendered said coin to the undersigned for the defendant, but the undersigned refused it, on the ground that by said decree or otherwise, he had no authority to accept it. The complainant then tendered said coin to said counsel for the defendant, who also refused it. In both cases the complainant declared the tender to be made unconditionally, and in order that complainant might be entitled to have his deed approved by the undersigned, and that he made tender to both the master and the defendant's counsel so as to avoid every question as to the sufficiency or effectiveness of the tender.
"That at said meeting, said defendant's counsel then filed with the undersigned the motion in writing herewith filed, marked C, entitled `Motion to suspend proceedings,' which motion the undersigned overruled; whereupon said counsel filed with the undersigned, in behalf of the defendant, the following papers, all herewith filed, to wit, the paper marked D, entitled `Protest of
the defendant;' the paper marked E, entitled `Copy affidavit of William Gilpin;' and the paper marked F, entitled, `Copy affidavit of R.M. Staigg.'
"That the undersigned, having heard said parties as aforesaid, and having received said documents and duly considered all the same, and having considered the evidence and allegation of the parties in the premises, thereupon then and there proceeded to grant the application of the complainant, and ascertained that the amount of money paid the complainant by the defendant for the land aforesaid was $2,308 84/100, and that the same was so paid August 20, 1862; and computed interest thereon from said day of payment to said May 16, 1867, and found the same to be $656 47/100, which sums added, amount to $2,965 31/100; and approved the form of a deed in the premises, . . . . and delivered said deed so approved and certified to the complainant." . . . .
The report then narrated the proceedings of the master in hearing exceptions thereto, and the appointment of a meeting for September 16, 1870, and continued as follows: —
"That the defendant then and there, in addition to the affidavits of William Gilpin and R.M. Staigg (whereof copies are herewith filed marked respectively E and F as aforesaid), which were read and accepted as evidence, called and examined as witnesses the following persons, who testified substantially as follows:
"Richard M. Staigg testified: On April 20, 1867, I applied to the master (the undersigned) at Newport, to know if I could pay to him the money ordered to be paid by me in his former report of March 15, 1867, and he replied in the negative, and said he had nothing to do with that, and would not receive the money. I have always been ready to pay said money ever since, and for some time — I don't know how long; it was left in bank at Newport, subject to the complainant's order. This is what Mr. Gilpin told me, and he also told me that he notified the complainant of it by letter. I do not know of any other communication on this subject made to the complainant.
"William B. Lawrence testified: I was not in Newport nor in this state on April 20, 1867; and there was no one authorized to receive said money for me — unless my solicitor of record in this cause was so authorized. I think I returned to Newport on
the 22d of April. I had intended, when I left the place, to return before the 20th of that month. I remained in Newport thirty days after the master's first report was filed, and nothing was done by the defendant under that report during that time; no deed was presented to me for execution, nor was I asked to prepare one.
"When I left Newport, I was called away by necessary business, and before my departure I asked the master if the defendant had done anything, or indicated whether he intended to do anything under said report, or had asked for any deed, or had requested the master to approve of any deed. The master answered me in the negative, and said that he had heard nothing of the defendant, and knew nothing of his intentions. I was very desirous to be in Newport in case the defendant should offer or tender money under said report, because I meant to insist on a strict tender. I heard nothing from William Gilpin until after I had applied to the master (April 26) to approve a deed for me,c. Just after I had left the master, after making that application, I met Mr. Gilpin on the street, and he told me he had written me a note about said money; but I had not then received it. I subsequently received it, but I think it stated that the money was left with the writer, and said nothing about any bank. . . .
"The undersigned further reports that the defendant also then and there proposed that the complainant should, if he chose to do so, examine or cross-examine said Staigg and Gilpin upon the matters contained in their said affidavit.
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The master reported to the court at its March Term, 1867, that he had found the aforesaid excess to be 12,710 square feet of land; that the amount due therefor, with interest, was $850.23; and that he had awarded, determined, and appointed that the said Staigg pay to the said Lawrence said sum of money on or before the 20th day of April, 1867, with interest to the day of payment.
At the September Term, 1870, of the court, this report was, on motion of the respondent, confirmed, and upon motion of the complainant the master was ordered to proceed in the execution of the decree sending the cause to him as a master, and to report his doings under the decree subsequent to the date of said report.
In accordance with said order, the master made a second report from which the following extracts are taken: —
"The undersigned, master in chancery in the above entitled cause, appointed in and by virtue of the decree of this court made
at its September Term, A.D. 1866, in addition to his report March 15, 1867, now respectfully further reports: . . . .
"That on the 29th day of April, 1867, the complainant made application to the undersigned to approve a deed to be executed by the defendant to the complainant, pursuant to the provisions of the last clause of said decree, and to ascertain the amount of money paid by the defendant to the complainant for the 43,918 square feet of land in said decree mentioned, and to compute the interest thereon as provided in said clause of said decree.
"That on May 16, 1867, at twelve o'clock, noon, at his office in Newport in said county, having duly notified the parties in said cause, . . . . the undersigned proceeded to consider said application in the presence of said complainant in person, and of James H. Parsons, Esq., the counsel of the defendant, who were both fully heard in the premises.
"That at said meeting, before any other proceedings were had, the complainant placed on the table in the office of the undersigned, American gold coin amounting to $3,051, as he then stated, and which he said he supposed would cover the whole sum which would be payable to the defendant under said last clause of said decree — the exact sum not having been then ascertained. The amount of said coin was admitted by the defendant's counsel to be as stated by the complainant, as aforesaid. The complainant then tendered said coin to the undersigned for the defendant, but the undersigned refused it, on the ground that by said decree or otherwise, he had no authority to accept it. The complainant then tendered said coin to said counsel for the defendant, who also refused it. In both cases the complainant declared the tender to be made unconditionally, and in order that complainant might be entitled to have his deed approved by the undersigned, and that he made tender to both the master and the defendant's counsel so as to avoid every question as to the sufficiency or effectiveness of the tender.
"That at said meeting, said defendant's counsel then filed with the undersigned the motion in writing herewith filed, marked C, entitled `Motion to suspend proceedings,' which motion the undersigned overruled; whereupon said counsel filed with the undersigned, in behalf of the defendant, the following papers, all herewith filed, to wit, the paper marked D, entitled `Protest of
the defendant;' the paper marked E, entitled `Copy affidavit of William Gilpin;' and the paper marked F, entitled, `Copy affidavit of R.M. Staigg.'
"That the undersigned, having heard said parties as aforesaid, and having received said documents and duly considered all the same, and having considered the evidence and allegation of the parties in the premises, thereupon then and there proceeded to grant the application of the complainant, and ascertained that the amount of money paid the complainant by the defendant for the land aforesaid was $2,308 84/100, and that the same was so paid August 20, 1862; and computed interest thereon from said day of payment to said May 16, 1867, and found the same to be $656 47/100, which sums added, amount to $2,965 31/100; and approved the form of a deed in the premises, . . . . and delivered said deed so approved and certified to the complainant." . . . .
The report then narrated the proceedings of the master in hearing exceptions thereto, and the appointment of a meeting for September 16, 1870, and continued as follows: —
"That the defendant then and there, in addition to the affidavits of William Gilpin and R.M. Staigg (whereof copies are herewith filed marked respectively E and F as aforesaid), which were read and accepted as evidence, called and examined as witnesses the following persons, who testified substantially as follows:
"Richard M. Staigg testified: On April 20, 1867, I applied to the master (the undersigned) at Newport, to know if I could pay to him the money ordered to be paid by me in his former report of March 15, 1867, and he replied in the negative, and said he had nothing to do with that, and would not receive the money. I have always been ready to pay said money ever since, and for some time — I don't know how long; it was left in bank at Newport, subject to the complainant's order. This is what Mr. Gilpin told me, and he also told me that he notified the complainant of it by letter. I do not know of any other communication on this subject made to the complainant.
"William B. Lawrence testified: I was not in Newport nor in this state on April 20, 1867; and there was no one authorized to receive said money for me — unless my solicitor of record in this cause was so authorized. I think I returned to Newport on
the 22d of April. I had intended, when I left the place, to return before the 20th of that month. I remained in Newport thirty days after the master's first report was filed, and nothing was done by the defendant under that report during that time; no deed was presented to me for execution, nor was I asked to prepare one.
"When I left Newport, I was called away by necessary business, and before my departure I asked the master if the defendant had done anything, or indicated whether he intended to do anything under said report, or had asked for any deed, or had requested the master to approve of any deed. The master answered me in the negative, and said that he had heard nothing of the defendant, and knew nothing of his intentions. I was very desirous to be in Newport in case the defendant should offer or tender money under said report, because I meant to insist on a strict tender. I heard nothing from William Gilpin until after I had applied to the master (April 26) to approve a deed for me,c. Just after I had left the master, after making that application, I met Mr. Gilpin on the street, and he told me he had written me a note about said money; but I had not then received it. I subsequently received it, but I think it stated that the money was left with the writer, and said nothing about any bank. . . .
"The undersigned further reports that the defendant also then and there proposed that the complainant should, if he chose to do so, examine or cross-examine said Staigg and Gilpin upon the matters contained in their said affidavit.
"And upon the foregoing, the defendant (admitting that no form of conveyance under said decree had ever previously been offered by the defendant for execution by the complainant, or for approval by the undersigned) then and there claimed that he had, in conformity with the terms of said former report of the undersigned, complied with the conditions of the decree in said causes, and was entitled to receive from the complainant a deed in conformity with said decree, and requested the undersigned to decide accordingly, and to approve the form of conveyance from the complainant to the defendant under said decree, herewith filed and marked M., O. To this the complainant objected; and the matter was then left with the undersigned, without argument or further discussion. And after full hearing, as aforesaid, having
considered the evidence and documents aforesaid; and the proofs and allegations of the parties, the undersigned refused said requests of the defendant, and decided the money last mentioned had not been legally paid or tendered (the defendant had not complied with the conditions of said decree) in conformity with said former report."
The affidavits of R.M. Staigg and William Gilpin, referred to in the master's report, were respectively as follows: —
"AFFIDAVIT OF RICHARD M. STAIGG.
"1, Richard M. Staigg, being duly sworn, do depose and say as follows: That on the 20th day of April last, I went to Newport for the purpose of tendering the amount found to be due by the report of the master in said cause, to wit, the sum of eight hundred and fifty dollars and twenty-three cents, with interest on said sum of six hundred and seventy-seven dollars and twenty-seven cents from the 15th of March, 1867, to said 20th day of April, 1867. That I, defendant, called in company with William Gilpin, Esq., on W.P. Sheffield, Esq., the attorney of record in said suit, to make a tender of said sum to him; that he informed me in the presence of Mr. Gilpin that he was no longer attorney for William B. Lawrence; that I therefore called, accompanied by William Gilpin, at the residence of William B. Lawrence, Esq., the complainant; that I was informed said Lawrence was and had for some time been absent in New York or Washington; that I asked if there was any member of his family at home authorized to represent or act for him; that I saw his son, Mr. Isaac Lawrence; that a tender of the sum as before named was made by me and for me by my counsel, Mr. William Gilpin, who was present and acting for me at the time. The suggestion was made that the sum could be paid in a check if the same would be accepted, and it being intimated that that would not be perfectly satisfactory, the offer to pay, and the tender of the said amount was made, the same to be paid on the spot in `greenbacks;' or United States notes of those of the national banks authorized under the act of Congress in that behalf; that the said Isaac Lawrence declined to receive the same, and stated distinctly that he was not authorized nor did he know of any person who was authorized to receive the money as tendered
on behalf of his father, the said W.B. Lawrence, complainant as aforesaid.
"I further state that I took all the means and made every effort that I could, or that counsel could advise me of, to make the payment provided for by the report of the master; and the absence of Mr. Lawrence, and his failure to leave any one authorized to receive the sum, alone prevented my paying the amount so provided to be paid by the said report."
"AFFIDAVIT OF WILLIAM GILPIN.
"I, William Gilpin, counsellor at law, of Newport, R.I., being duly sworn, do depose and say as follows: That Saturday, April 20, 1867, Richard M. Staigg called at my office in Newport and requested me to accompany him to the office of Wm. P. Sheffield, Esq., in order that he (Staigg) might pay or arrange for the payment of the sum reported to be due by the master in the above entitled suit. That we called together at the office of Mr. Sheffield and informed him of our intention and wish, he being the attorney of complainant in said suit; Mr. Sheffield informed us that he was no longer counsel for Governor Lawrence in this or any other case. Mr. Staigg then accompanied me to the Aquidnick Bank, where I assisted him in getting a check for the amount due Lawrence cashed. I requested the teller of the bank to give him the money in legal tender, meaning by that `greenbacks,' so called, United States national bank notes, and this request I believe was complied with. That thereupon Mr. Staigg and myself went together to the house of W.B. Lawrence; we were informed by the servant that Mr. Lawrence was in Washington. We inquired if there was any member of his family at home, and were told that Mr. Isaac Lawrence was at home. We requested to see him and did see him; we asked him to inform us where his father was; he replied that he was in Washington and might return in a few days. We then told him that the purpose of our visit to his father was to pay the amount reported by the master as due from Mr. Staigg to Mr. Lawrence, and I read to him so much of the report as related to the payment of the money on or before April 20, 1867, and also the amount which the master had directed should be paid. The envelope containing the money in legal tender notes was opened
by Mr. Staigg in Mr. Isaac Lawrence's presence and my own, and the amount reported by the master was tendered then, Mr. Staigg or myself offering to count it in his presence to show that the amount was correct, and also to satisfy Mr. Isaac Lawrence that the money was all in legal tender notes. Mr. Lawrence said to us that he had received no directions from his father on the subject, and not being authorized by his father to receive the money, he declined to receive it. We then asked him if any other person was authorized to receive the money for his father, telling him that if there were any such person or persons we desired to meet with them for the purpose of paying the money to him or them. He said that he did not know of any such person, and that he did not think that there was any one in Newport who was authorized to receive the money for his father. During the interview, Mr. Isaac Lawrence asked us if we had brought specie, and he was informed by us that we had brought, for the purpose of paying the sum by us to be paid, legal tender notes; we requested Mr. Isaac Lawrence to inform his father on his return, and as soon as he returned, of our visit, and the purpose for which we came. After some further short conversation relating partly to the lot of land in dispute in the case, and partly to other matters, and after again tendering the amount reported by the master to be due to Mr. Isaac Lawrence, which was again refused by him, we left the house."
The case was now heard upon the respondent's exceptions to the master's report, which are sufficiently stated in the opinion of the court.
The bill in this case prayed to have rescinded a sale made at auction by the plaintiff to the defendant, at which the lot No. 1 on the plat was struck off to the defendant at 5 1/2 cents per square foot. The number of feet that the lot was supposed to contain (or 43,918 feet) was marked upon the plat as both parties supposed, correctly. The deed of conveyance of the lot of land was drawn and executed under this mutual mistake, and the consideration calculated upon that basis
was inserted in the deed and paid by the defendant. The lot actually contained 55,680 square feet, so that the whole consideration correctly cast would have been more than the amount paid by some $667.
Upon hearing the bill upon its merits, the court decreed that the sale should be rescinded, if necessary to correct the mistake, but that the title should not be rescinded but remain in the defendant without such rescission if he would pay the sum which the master should report due, and it was referred to a master to ascertain and compute the sum to be paid.
The decree of reference directed the master to ascertain the number of square feet in excess of that marked on the plat and the amount to be paid by defendant therefor, and having ascertained the sum, to appoint a time within which the amount so ascertained by him should be paid, and in case the defendant shall fail, neglect, or refuse to pay the amount so ascertained by the master within the time to be appointed, then the contract of sale shall be rescinded, and defendant shall execute to said complainant a conveyance to be approved by the master, of the 43,918 feet of land conveyed to him by the complainant.
The master proceeded to the execution of the decree, and on the 15th day of March, 1867, reported that he had ascertained the amount due as directed, and had appointed the sum to be paid by the defendant on or before the 20th day of April, 1867. The report was received and confirmed, and the master directed to proceed in the further execution of his duties, and to report his proceedings. He has now reported that the defendant has not complied with the conditions of said decree, in conformity with said former report. He has reported the evidence upon which he came to the conclusion which he has reported, viz., that the defendant has not complied with the conditions.
One of the exceptions filed by the defendant to the report, and the only one perhaps that need be considered, is, that the report is not warranted by, but is against the evidence reported, and the master should have reported a full compliance by the defendant with the decree and order of the master. The question is not here whether the defendant is entitled to a release from the plaintiff, not having actually paid the full consideration, but whether he has, in the language of the decree, failed, neglected,
or refused to pay within the time appointed by the master, and that the plaintiff is entitled to a reconveyance of the estate vested in the defendant, and to a rescission of the title for failure to perform a condition. The condition is, by the decree, not made a condition precedent, for the defendant had already the title, which was to be divested upon non-performance of the condition subsequent. It is therefore in the nature of a forfeiture of his title. He was not to gain, but to save by performance.
The case has been argued as if it were to be determined by the strict legal rules of tender, and as if applied to a contract which should give a right to the party only upon performance of the thing contracted to be done by him. The act here required is not part of a contract; there is no condition, either precedent or subsequent, of a contract. [The act to be done or prescribed by a court of equity which gave the defendant the opportunity to do exact justice to the plaintiff, and if he will do so, the estate vested in him shall not be disturbed or divested.] He is to pay now the sum, which, but for the mutual mistake of the parties, would have been paid before or upon the execution of the decree. This decree the court will see fairly carried out. If the defendant shall refuse or neglect to pay, or if he shall by neglect fail to pay, he must abide the consequences of such neglect or refusal, and must reconvey. But if he has in good faith endeavored to perform on his part what is required, and has made every reasonable effort to perform, and from circumstances beyond his control failed to perform, the court would be as much bound in equity to relieve against forfeiture for such cause as to allow him to relieve himself in the first instance by payment of the unpaid purchase money.
The evidence reported by the master shows that the defendant, on the day limited for the payment, had a check upon the Aquidnick National Bank in Newport for the full amount payable; that it was presented at the bank for payment, with a request to receive it in legal tender notes; and though the packages in which the bills were put were not examined with that view, it was believed to be made up of legal tender notes. That the defendant sought for the plaintiff, or some one authorized by him, to receive the money; that the plaintiff had left the state some days before, and was not where it was possible to meet
him, or to offer him the money; that the plaintiff had left no person authorized to receive it for him; his counsel and solicitor in this case had been discharged, and the plaintiff had left no agent to act for him at his own house. His son declined to receive the money or to act for him in the matter. Nothing more could have been done had the price been gold coin. It could not have been paid. No effort, or care, or diligence, could have availed the defendant to now make the payment. Had the plaintiff left the state leaving no one to act for him in the matter, by design to avoid the payment, it is conceded that no fault could be imputed to defendant that payment was not made. But he went without any such design or intent. His business required his going, though he might have left an agent here to account to him. He did not. It did not occur, we may suppose, to the defendant that the plaintiff would be absent, and there would be no one to receive the money. The result is the same as if the departure were designed. It was an accident by which the parties failed to meet, and which rendered it impossible they should meet. The fault being, if fault there was, as much upon the part of the plaintiff as upon that of the defendant. No want of good faith is imputable to either by the other.
This is not, in our apprehension, a failure on the part of the defendant, within the fair meaning of the decree of reference. The language is, if he "shall fail, neglect, or refuse to pay," within the time, c., to be appointed. There is no neglect or refusal. There is, to be sure, a failure to pay. But this means a failure from some fault imputable to the party. A court of equity could give no other construction to it; and had it been suggested when the decree was ordered, that any other construction would be claimed, the word fail would have been omitted. The purpose in allowing the defendant to do justice to the plaintiff would have been defeated, and will now if we hold to the strictness. Was then the defendant neglectful or refusing? We think not. He has failed because it was, under the circumstances, impossible. It may not be necessary to send this again to a master; the sum has been ascertained which the defendant is to pay, and it remains only to cast interest upon the sum from the execution of the deed.
And the court may fix by its decree the fixed time within
which the payment may be made. And to avoid such question as is now made, it will be better to direct the payment, if the plaintiff cannot be found, or any agent of his, to be made into the registry of the court, for the plaintiff; and that it be paid either in gold coin of the United States, or in notes of the United States made by statute a legal tender in payment of debt.
After the rendition of the foregoing opinion, and before the entering of any decree, a rehearing was had upon the application of the complainant, whereupon the following opinion was delivered by