[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 362 The nonconformity of the building to the contract in the lease is admitted. The facts relied upon to show that the defendant fraudulently induced a belief upon the part of the complainant that the building erected by the latter would be accepted and paid for, until it was too late to make the necessary alterations, are 1. That no objection was made by the defendant to the building as it was constructed, until the last meeting of the appraisers, three days before the expiration of the lease; 2. The concurrence of the defendant in the appointment of the appraisers, and 3. His failing to state, at their first meeting, the grounds upon which he relied to resist the claim of the complainant.
All these may, perhaps, be fairly enough resolved into a single objection, that the defendant at no time, prior to his letter to the appraisers, apprised the complainant of his intention to insist upon a strict fulfilment of his covenant. It is obvious from the bill, that the complainant did not rely upon this omission, alone, as an authority to him to depart from his contract, because *Page 363 it alledges that Butler, at the time of the erection of the building, approved of the variation from the contract, and oftenadmitted to the complainant his right to compensation. It was the declaration of the defendant, and not his omission to speak, that really influenced the defendant, as is fairly to be inferred from his own statement of his case. If we leave out this averment, and it is denied by the answer and not proved, the remaining facts to which I have alluded, would seem to be rather slight evidence of fraud. They would rather indicate the settled determination of a selfish man, to claim the full benefit of the agreement, leaving it to the contract to declare what the complainant must perform, and the defendant must accept. Such conduct may seem harsh, and repulsive, but it is very far from being fraudulent. It is the enforcement of a legal right, operating oppressively in the particular case, but against which it is difficult for law or equity to afford relief, without substituting the undefined and therefore dangerous discretion of a court, for the fixed principles upon which the law in relation to contracts should be administered.
My opinion is that the judgment should be reversed.
Judgment reversed.