The first and second counts are not proved, as to the tender of performance on the part of the plaintiffs; it is an old rule of evidence, that an averment of performance, is not sustained by proof of a waiver, or of matter in excuse of performance. In this case, the matter excusing an offer to perform on the part of the plaintiffs, ought to have been expressly averred.(1) Neither is there any express proof of the averment in the first count, that the plaintiffs were to have the goods at 67 1-2 per cent, advance. It appears, on the contrary, that they were to have them at the highest market price.
As to the third count, there may be a valid contract for a refusal, where money is advanced in consideration of the party having the refusal, he taking, in the mean time, the *189risk of the importation; this is not, however, the contract set forth in this count.
I am inclined also to consider this case within the statute of frauds: it is, if any thing, a contract for a sale, and ought to have been in writing. As to the matter of part performance, equity relieves in such cases, where the contract relates to lands; and there is a didam that courts of law will interfere, in all cases where a court of equity will. But this doctrine has not been extended to contracts relating to personal property. With regard to such contracts, there can be no other part performance, but what is set forth in the statute, as payment of part, &c.
As to the two last counts also, to which alone the testimony in the cause can apply, there can be no rule of damages to apply to them, if they were fully proved.(2)
Non-suit ordered.
Boyd, D. B. Ogden, and Emmet, for plaintiffs.
Robertson, Wells, Hoffman and Harrison, for defendant.
Vide, ante, Cumings v. Fisher, 4th note, where this subject is considered. Vide, etiam, Lawes on Pleading, 120, 204; 1 Chitty on Pleading, 317.
This, it seems, would be now considered a sufficient ground for relief in equity, upon this contract relating to personal property. The true and leading distinction, in the present exercise of equity jurisdiction, does not proceed (as is sometimes erroneously supposed) upon a distinction between real and personal estate, but upon the ground that the damages at law may not, in the particular case, afford a complete remedy. Story, Eq. Jurisp., sec. 216, &c. The inherent difficulties, in the case in the text, would have been more manageable in a court of equity, and the proper relief obtained upon a seasonable application.