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King r. Ruckman.

Fourth. In this case there is nothing in the terms of the agreement itself, in the nature of the property, or the attendant circumstances, which would make it inequitable for the court to interfere and decree performance of the contract, though payment, or offer of payment, had not been made on the precise day fixed.

Fifth. Parol evidence of conversations between the parties at and before the execution of the contract, is not admissible to alter, add to, or vary the terms of the written

nstrument, and thus render it a contract of which time is of the essence. But a defendant to a bill for specific performance may offer such conversations in evidence as independent proof, to rebut an equity set up by the complainant.

Sixth. The defendant's contention that because the second payment of $19,900 was not made on the first day of June, he lost certain contracts for the sale of land, to fulfill which on his part, it was understood he depended on the receipt of said second payment on the day it fell due, is not well founded, because he says in substance, that these contracts matured during that month of June, and that payment by the 10th would have served his purpose, and further, that on the 2d of June, as early as eight o'clock A. M., he served on complainant a notice that the contract was at an end, and ever afterwards refused to acknowledge its existence.

Seventh. It satisfactorily appears, that while the complainant on and prior to the said 1st day of June, was desirous of fulfilling the contract on his part, the defendant was anxious to rid himself of it.

Eighth. The notice given by defendant to complainant, that the time of payment of the $19,900 would not be extended, cannot aid the defendant, because the complainant was ready with the money on the day of payment, and the dispute is, whether he produced and offered it at the proper place.

Ninth. By the contract the $19,900 was payable at the house of the defendant, and not at the office of Mr. Voorhis.

Tenth. Assuming that the defendant's refusal to extend VOL. VI.

2 R

King 2. Ruckman.

the time of payment of the $19,900, made it necessary for the complainant to make the payment on the precise day stipulated, the weight of the testimony, after giving due and legal consideration to the answer of the defendant, and full credit to the testimony of Mr. Voorhis, is that by an understanding between the parties, the office of Mr. Voorhis was the place at which the payment was to be made. And the complainant having presented himself there with the money on the 1st day of June, and the defendant failing to attend and accept it, and having early the next morning sought to repudiate his contract, and refused three days afterwards to receive the money, when the complainant expressed his willingness to pay it, the defendant's answer to the complainant's case that the money was not tendered to the defendant at his house, on the 1st day of June, cannot prevail in a court of equity.

Eleventh. Though Mr. Voorhis advised the complainant to seek out the defendant at defendant's house, and tender the money to him there, the complainant did not, under the circumstances, lose his rights by not doing so.

Twelfth. Taking the contract, bill, and answer together, it can be made to appear with sufficient certainty, without resorting to parol evidence, what lands were intended to be embraced in the contract.

The result is, that the cross-bill of Ruckman should be dismissed with costs in this court, and the court below, and a decree entered in the original cause, with costs in both courts, directing the defendant, Ruckman, to make conveyance according to his contract, so far as he has the ability to do so. If the defendant should be able to perform his contract in part only, then the value of the lands embraced in the contract, and which he is not able to convey, should be ascertained, and damages awarded to the complainant, or allowance made to the defendant, as the principles of equity may require. In case the lands to be conveyed, or any of them are encumbered, and the defendant cannot remove the encumbrances for want of funds , the complainant must

King 1. Ruckman.

assume the encumbrances, or pay the same, and receive an allowance therefor on the purchase money. If the contract cannot now be fully executed, let it be carried into effect on equitable principles, as far as circumstances will admit.

The decree of the Chancellor in the original cause must also be reversed, and a decree entered in this court in accordance with the principles above stated.

For reversal-BEASLEY, C. J., BEDLE, DALRIMPLE, DEPUE, KENNEDY, VAIL, WALES. 7.

For affirmance-OGDEN, OLDEN, SCUDDER, VAN SYCKEL, WOODHULL. 5.

ADDITIONAL RULES

OF THE

COURT OF ERRORS AND APPEALS.

RULE XXXVIII.

Hereafter, the Court of Errors and Appeals, on the first day of the term, will meet at 11 o'clock, A. M.

(March Term, 1869.)

RULE XXXIX.

Appeals from the Prerogative Court shall be governed by the rules of this court relating to appeals from the Court of Chancery.

(March Term, 1870.)

RULE XL.

The printed briefs provided for in the 37th rule, may be furnished by each counsel at the commencement of his argument, without any notice to the opposite party.

(June Term, 1870.)

RULE XLI.

The time allowed by the 12th rule to each counsel, without express permission extending it, shall be limited to two hours and a half.

(Same Term.)

RULE XLII.

The court will hereafter require the points provided for in the 13th rule, to be furnished in all cases previous to the hearing.

(Same Term.)

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ACCOUNT.

„See SALE OF LANDS FOR PAYMENT OF

DEBTS, 1, 2.

ACQUIESCENCE.

See INJUNCTION, 3.

ADVERSE USER.

See EASEMENT, 1.

AFFIDAVIT.

Spe EVIDENCE, 6, 11, 16.

AGENT.

See CONTRACT,

PRINCIPAL AND AGENT.

AGREEMENT.

See JURISDICTION, 3.

PRACTICE, 12.

APPELLATE JURISDICTION.

1. With respect to appellate jurisdie-

tion, there is a class of cases to
which no certain test can be ap-
plied, but each case of such class,
in this particular, must be ad-
judged by its peculiar circumstan-

C. A. R. Co. v. Stewart, 484

ces.

2. The case should be especially clear,

to warrant the expunging of mat-
ter from pleadings as impertinent;
but when the Chancellor has struck
out statements from a bill which
are very prolix, and appear to be
of but small importance to the
case, this court will not interfere
with such order.

Ib.

ASSIGNEE AND ASSIGNMENT.

See ASSIGNMENT FOR BENEFIT OF

CREDITORS.
MORTGAGE, 17.

See CONTRACT.

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