Bill in equity asking for the specific performance of a written agreement to convey.certain real estate, given by one George F. Hill, and dated August 5, 1918. The defendants are grantees of the premises from George F. Hill, without consideration as claimed by the plaintiff. The bill alleges that the amount to be paid by the plaintiff under this agreement was $1,489.00 and that this amount was subsequently paid to said George F. Hill who acknowledged full satisfaction, promised to make the conveyance, but never did, and instead conveyed to the defendants.
The answers, while admitting the agreement of August 5, 1918, and certain payments thereunder, deny a substantial performance thereof, and further allege that a second agreement was entered into by Mitchell and Hill on December 9, 1918, which cancelled the previous agreement of August 5, 1918; that under the second agreement the amount to be paid was $951.00 together with other indebtedness in the forms of notes and accounts, upon the payment of all which sums the defendants are ready and willing to convey the premises. The genuineness of this agreement seems to have been somewhat doubted by the plaintiff’s witnesses, but the plaintiff himself did not testify. The defendants further ask that a master in chancery be appointed to ascertain the amount due.
At the close of the evidence introduced by the plaintiff, the sitting Justice entered a decree dismissing the bill with costs. An appeal was entered by the plaintiff.
This finding that the plaintiff had not paid in full the amount due and therefore was not entitled to a conveyance was warranted by the utter unreliability of the evidence offered and must stand.
However, the plaintiff in his bill offers to pay any balance that may be found due. The defendants in their answer offer to convey upon the payment of such balance. Therefore the equitable rights of the parties require that a master bo appointed to ascertain and report:
1. Whether the agreement of December 9, 1918, did supersede that of August 5, 1918.
2. If it did not, what balance, if any, is due from the plaintiff under the agreement of August 5, 1918.
3. If it did, what balance, if any, is due from the plaintiff under the agreement of December 9, 1918.
*3804. Also to ascertain and report such other material facts as to the sitting Justice who issues the order appointing the master, may seem pertinent and proper.
Appeal sustained.
Cause remanded.
Master to be appointed in accordance with this opinion.
So ordered.