Roberts, J.
Appellant brought an action for the specific performance of an agreement, executed by appellee in his favor, for a tract of land, of thirty four hundred acres, “being part of “different tracts, all joining, all the balance of the Meredith “league, supposed to be twenty one hundred acres, more or “less, not sold to others; six hundred and forty acres, south of “Richland prairie, south-east of Dr. Hill’s; the balance to “come off of Smith or Treadwell’s headlight, on said John “Welch’s part of said tract.” It acknowledges a consideration of fifteen hundred dollars; is executed on the 2d day of November, 1849; and binds Welch to make Younger, his heirs or assigns, a deed with warranty, in six months thereafter. The petition was filed on the 24th day of January, 1851, which sets forth the obligation, and alleges that Welch has wholly failed and refused to comply with its terms, and has not conveyed the land to the petitioner, as he was bound to do.
From the shape of the agreement, it was not necessary to allege any additional fact, to constitute a good right of action, except its non-performance by Welch, at the time stipulated. It was not necessary to allege, specially, that the purchase money had been paid, for the bond showed that. The making of the deed, by Welch, was not made dependent upon any condition, such as the payment of the purchase money, as is most usual in such bonds, but a time was fixed within which the deed was to have been made.
[424]*424The answer of the defendant contained various pleas, intended to present the same or similar grounds of defence. Defendant alleges, that the consideration for which the bond was given, was the punctual payment of the following obligation:
“Four months after date, I promise to pay John Welch, “eleven hundred seventy dollars and fifty cents, to be paid in “corn, delivered at Fort Worth, at six bits per bushel, or more, “if I can contract it for more. November 2d, 1849.”
(Signed) “A. Younger.”
That the sale was made for the sole and only purpose of complying with a contract, made by Welch, for supplying corn to the United States troops, at Fort Worth, at one dollar per bushel; that Younger wholly failed and refused to deliver the corn, as stipulated, “by reason whereof, and said failure of said “contract, said defendant is released and discharged from the “same, and prays the court that said note be canceled, and said “writing sued upon be canceled, and that the parties be placed “in the same situation they were before the making of said “contract.”
The judgment of the court was rendered in accordance with this prayer, so far as to rescind the contract.
The court charged the jury, that, “4th. If the evidence “shows that Younger failed to deliver the corn, as stipulated in “his note, then this amounts to an abandonment of the contract, “unless he has shown that the acts of Welch prevented the “delivery, and Welch was no longer bound to make the title to “the land.” And, “5th. That the said note was for the pay“ment and delivery of corn; and that, when plaintiff delivered “the corn at Fort Worth, then he was entitled to receive a title: “if he never delivered the corn, then he failed to comply with “his contract, and cannot succeed in this suit, unless, subsequent to his failure to deliver the corn, Welch offered to “receive money instead of corn, and plaintiff, in compliance “with such offer, tendered to Welch sufficient in gold and sil“ver, or current bank notes, to pay said note.”
[425]*425These charges proceed upon the assumed truth of two propositions, to wit:
1st. That the punctual delivery of the corn was the sole consideration and inducement to the contract of sale.
2d. That default, on the part of Younger, in not delivering the corn, by the time stipulated, was in and of itself an abandonment of the contract of purchase, and put an end to it.
The first proposition involves an important question of fact, which should have been left to the jury. The two obligations, one for the land, and the other for money to be paid in corn, were in their terms independent contracts, expressing no relation to each other, each binding the obligor therein to perform unconditionally at a fixed time, and each at a different time from the other. (1 Sugd. on Vend. 262, and note; Perry v. Rice, 10 Tex. Rep. 367.) It was incumbent upon the defendant to' aver and show the connection and dependency, and state such facts as would tend to render it inequitable for the plaintiff to enforce a specific performance of the bond, as an independent covenant. (Id.; and also 1 Sugd. on Vend. 261, §§ 56, 57, 58.) This he did, by averring distinctly the fact, which did not appear upon, nor could be inferred from, the face of the obligation, that the “punctual payment” of the note in corn, was the sole and only consideration and inducement of the sale, &c.- It was this averment, by which it was sought to make the time and manner of performing his part of the contract, on the part of Younger, important, and of the essence of the contract. Upon the face of the papers, equity would not have regarded the punctilious performance, as to time or manner, as indispensable to the maintenance of the contract. (Halsey v. Grant, 13 Ves. Jr. Rep. 73; Horniblow v. Shirley, Id. 81; Alley v. Deschamps, Id. 225; Seton v. Slade, 7 Id. 265.) Courts of of equity are continually relieving against forfeiture of rights being claimed upon the failure to perform by the exact time stipulated, where time is not shown to be the essence of the contract. (1 Sugd. on Vend. 287; Seton v. Slade, 7 Ves. Rep. 245.) But for this averment, it might be difficult to see why [426]*426payment of the note in money, ($1,170 50) would not he as good, as in corn at “six bits per bushel.” The averment was most material, as giving character to the whole trade, and as interpreting the intention of the parties in reference to the mode of performing the Contract. The facts averred should have been passed upon by the jury, and not assumed by the court.
The second proposition is liable to an objection of a different character. Such default of Younger, if it occurred, did not of itself put an end to the contract, although it gave Welch the right to put an end to it.
Any act of disaffirmance, then, done by Welch, would have put an end to it; as by selling the land to another, bringing a suit to rescind, or the like. (Hatch v. Cobb, 4 Johns. Ch. Rep. 559.) If Younger, after such default, had manifested a decided, positive abandonment of the contract, Welch’s acquiescence in Younger’s abandonment, would have disaffirmed the contract. If, on the other hand, Younger had, after such default, notoriously persisted in holding on to the contract, then Welch’s acquiescence would affirm and continue the contract. (Mitchel v. Shepard, 13 Tex. Rep. 493; 1 Sugd. on Vend. 275.)
Upon such default, Welch had the option to continue the contract, or put an end to it. Still, in a reasonable time, he must make his .choice. If he had chosen to disaffirm it, he must have manifested it by such acts, words, or silence, according to the circumstances, as would have indicated his intention to do so. “Where one party fails in performing the “ contract, the other, if he mean to rescind it, should give clear “notice of his intention.” (Sugd. on Vend. 266.)
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Roberts, J.
Appellant brought an action for the specific performance of an agreement, executed by appellee in his favor, for a tract of land, of thirty four hundred acres, “being part of “different tracts, all joining, all the balance of the Meredith “league, supposed to be twenty one hundred acres, more or “less, not sold to others; six hundred and forty acres, south of “Richland prairie, south-east of Dr. Hill’s; the balance to “come off of Smith or Treadwell’s headlight, on said John “Welch’s part of said tract.” It acknowledges a consideration of fifteen hundred dollars; is executed on the 2d day of November, 1849; and binds Welch to make Younger, his heirs or assigns, a deed with warranty, in six months thereafter. The petition was filed on the 24th day of January, 1851, which sets forth the obligation, and alleges that Welch has wholly failed and refused to comply with its terms, and has not conveyed the land to the petitioner, as he was bound to do.
From the shape of the agreement, it was not necessary to allege any additional fact, to constitute a good right of action, except its non-performance by Welch, at the time stipulated. It was not necessary to allege, specially, that the purchase money had been paid, for the bond showed that. The making of the deed, by Welch, was not made dependent upon any condition, such as the payment of the purchase money, as is most usual in such bonds, but a time was fixed within which the deed was to have been made.
[424]*424The answer of the defendant contained various pleas, intended to present the same or similar grounds of defence. Defendant alleges, that the consideration for which the bond was given, was the punctual payment of the following obligation:
“Four months after date, I promise to pay John Welch, “eleven hundred seventy dollars and fifty cents, to be paid in “corn, delivered at Fort Worth, at six bits per bushel, or more, “if I can contract it for more. November 2d, 1849.”
(Signed) “A. Younger.”
That the sale was made for the sole and only purpose of complying with a contract, made by Welch, for supplying corn to the United States troops, at Fort Worth, at one dollar per bushel; that Younger wholly failed and refused to deliver the corn, as stipulated, “by reason whereof, and said failure of said “contract, said defendant is released and discharged from the “same, and prays the court that said note be canceled, and said “writing sued upon be canceled, and that the parties be placed “in the same situation they were before the making of said “contract.”
The judgment of the court was rendered in accordance with this prayer, so far as to rescind the contract.
The court charged the jury, that, “4th. If the evidence “shows that Younger failed to deliver the corn, as stipulated in “his note, then this amounts to an abandonment of the contract, “unless he has shown that the acts of Welch prevented the “delivery, and Welch was no longer bound to make the title to “the land.” And, “5th. That the said note was for the pay“ment and delivery of corn; and that, when plaintiff delivered “the corn at Fort Worth, then he was entitled to receive a title: “if he never delivered the corn, then he failed to comply with “his contract, and cannot succeed in this suit, unless, subsequent to his failure to deliver the corn, Welch offered to “receive money instead of corn, and plaintiff, in compliance “with such offer, tendered to Welch sufficient in gold and sil“ver, or current bank notes, to pay said note.”
[425]*425These charges proceed upon the assumed truth of two propositions, to wit:
1st. That the punctual delivery of the corn was the sole consideration and inducement to the contract of sale.
2d. That default, on the part of Younger, in not delivering the corn, by the time stipulated, was in and of itself an abandonment of the contract of purchase, and put an end to it.
The first proposition involves an important question of fact, which should have been left to the jury. The two obligations, one for the land, and the other for money to be paid in corn, were in their terms independent contracts, expressing no relation to each other, each binding the obligor therein to perform unconditionally at a fixed time, and each at a different time from the other. (1 Sugd. on Vend. 262, and note; Perry v. Rice, 10 Tex. Rep. 367.) It was incumbent upon the defendant to' aver and show the connection and dependency, and state such facts as would tend to render it inequitable for the plaintiff to enforce a specific performance of the bond, as an independent covenant. (Id.; and also 1 Sugd. on Vend. 261, §§ 56, 57, 58.) This he did, by averring distinctly the fact, which did not appear upon, nor could be inferred from, the face of the obligation, that the “punctual payment” of the note in corn, was the sole and only consideration and inducement of the sale, &c.- It was this averment, by which it was sought to make the time and manner of performing his part of the contract, on the part of Younger, important, and of the essence of the contract. Upon the face of the papers, equity would not have regarded the punctilious performance, as to time or manner, as indispensable to the maintenance of the contract. (Halsey v. Grant, 13 Ves. Jr. Rep. 73; Horniblow v. Shirley, Id. 81; Alley v. Deschamps, Id. 225; Seton v. Slade, 7 Id. 265.) Courts of of equity are continually relieving against forfeiture of rights being claimed upon the failure to perform by the exact time stipulated, where time is not shown to be the essence of the contract. (1 Sugd. on Vend. 287; Seton v. Slade, 7 Ves. Rep. 245.) But for this averment, it might be difficult to see why [426]*426payment of the note in money, ($1,170 50) would not he as good, as in corn at “six bits per bushel.” The averment was most material, as giving character to the whole trade, and as interpreting the intention of the parties in reference to the mode of performing the Contract. The facts averred should have been passed upon by the jury, and not assumed by the court.
The second proposition is liable to an objection of a different character. Such default of Younger, if it occurred, did not of itself put an end to the contract, although it gave Welch the right to put an end to it.
Any act of disaffirmance, then, done by Welch, would have put an end to it; as by selling the land to another, bringing a suit to rescind, or the like. (Hatch v. Cobb, 4 Johns. Ch. Rep. 559.) If Younger, after such default, had manifested a decided, positive abandonment of the contract, Welch’s acquiescence in Younger’s abandonment, would have disaffirmed the contract. If, on the other hand, Younger had, after such default, notoriously persisted in holding on to the contract, then Welch’s acquiescence would affirm and continue the contract. (Mitchel v. Shepard, 13 Tex. Rep. 493; 1 Sugd. on Vend. 275.)
Upon such default, Welch had the option to continue the contract, or put an end to it. Still, in a reasonable time, he must make his .choice. If he had chosen to disaffirm it, he must have manifested it by such acts, words, or silence, according to the circumstances, as would have indicated his intention to do so. “Where one party fails in performing the “ contract, the other, if he mean to rescind it, should give clear “notice of his intention.” (Sugd. on Vend. 266.)
This most important distinction is not embraced, either in the charge, or in the pleas; but the act of default, on the part of Younger, which only gave to Welch the right to disaffirm, is treated, in this case, as putting an end to the contract.
What would have been a reasonable time for such disaffirmance to be manifested, must depend upon the circumstances of the case. It is said, that it must be done promptly, and decidedly, or it will be presumed to have been waived. (Lawrence v. Dale, 3 Johns. Ch. Rep. 23.)
[427]*427If this suit had been brought so soon after the default, as that a reasonable time would not have elapsed to have manifested it, then it might have been claimed, and set up in the answer. But here, nearly eleven months elapsed after the default, before this suit is brought; and nearly four years afterwards, the amended answer is filed, by Welch, which claims a forfeiture of the contract, upon the alleged default to perform it, and prays a rescission for the first time; and no act of disaffirmance, on the part of Welch, is alleged during that whole time. Under these circumstances, there must have been ample time, perhaps even in the ten months before suit, to have manifested a disaffirmance of the contract; and therefore, the court should have required it to have been alleged and proved, and “should not have dispensed with the necessity of it, in its charge, by making the default of itself put an end to the contract.
Again, although there had been no act of disaffirmance of the contract, by Welch, after he had the right to do so, had the first proposition been clearly established, (that the punctual payment of the corn was the inducement to the trade,) the second might have followed, as a consequence, in the absence of any affirmance by acts, or acquiescence, by Welch ; for equity will not, in the absence of such affirmance, enforce a contract, if it be objected to, where the non-performance has been so material, or attended with such laches and failures, as to render its enforcement inequitable. (Guest v. Homfray, 5 Ves. Rep. 818; Benedict v. Lynch, 1 Johns. Ch. Rep. 370.)
The only qualification of the fifth charge, above quoted, was, that if, subsequent to the failure to pay in corn, Welch offered to receive money, and it was tendered in specie, or current bank notes, by Younger, that would be a sufficient performance to maintain the suit. This leaves out of view any other mode of affirmance of the contract, or waiver of the default. The evidence pointed to other modes, much more directly than this, as long acquiescence; the act of bringing a separate suit on the note by Welch, before he filed his answer; and negotiations and efforts, by the parties, after the default, to settle the matter; [428]*428which seems to have been prevented, only by a misunderstanding about the right of Welch, to demand three hundred dollars more than the face of the note called for. (Lewis v. Woods, 4 How. Miss. Rep. 87 ; 1 Sugd. on Vend. 275; Sanger v. Wood, 3 Johns. Ch. Rep. 416; Brock v. Jones, 16 Tex. Rep. 461.) This will suffice to show that the cause should be remanded.
The evidence • exhibited that Younger had paid part of the note, and had off-sets sufficient to discharge most, if not the whole of it; and that the main reason why the parties did not themselves come to an amicable settlement of the whole matter, was a disagreement about Younger’s obligation to pay the three hundred dollars claimed by Welch, in addition to the amount of the note. The evidence, in the record, does not sufficiently show his right to demand this additional amount.
As a valid off-set has ever been held, by this court, as an ex-tinguishment, fro tanto, of the debt sued for, no reason is seen why Younger should be expected, or required, to pay gold and silver in discharge of this note, while he held such valid off-sets in his hands.
The plea of payment was vague and general, and did not specify the manner in which the note was discharged, by setting forth the off-sets and items of payment, which were intended to be relied on. Being specially excepted to upon these grounds, it should have been held bad. Had this been done, plaintiff might have amended his pleading, so as to have obviated any objection to the evidence made to the off-sets and payments.
The other pleas and charges, and the questions in relation to the intervenor, need not be discussed, as the parties will no doubt think it proper to present, more fully and definitely, the facts upon which they respectively rest their rights.
The objection taken to the description of the land intended to be sold, in the bond, is certainly not tenable, pas to that part of the land included in the league ; and as to the other, it probably may be made certain, by appropriate allegations. (Casey v. Holmes, 10 Ala. Rep. 778.) Judgment reversed, and cause remanded.
Reversed and remanded.