The opinion of the court was delivered, October 25th 1867, by
Read, J.The Erie Gas Company sold to the defendant on the 25th of July 1853, lot No. 1904, for the sum of $1500, paid at the time of the purchase; and covenanted to make and deliver to him a good and sufficient conveyance of said lot.in fee simple, clear of all encumbrance, on or before the 1st day of November 1853. This they failed to do, and on the 22d January 1856, the defendant brought his action of covenant for this breach 'of the covenant. The case was tried on the 30th September 1857, and resulted in a verdict for plaintiff for $25.06. Before this trial, but after the commencement of the suit, the defendants obtained a clear title to the lot, and made and tendered a deed to plaintiff together with the costs of suit, which he refused to accept, and defendants brought the deed and a release into court, and tendered them on the trial, and after verdict the court ordered and directed that “ the deed from t'he Erie Gas Company to plaintiff, and a release from B. Tomlinson to the same, be filed subject to the further order of the court.”
Upon a writ of error to the Supreme Court taken by Haverstick, the judgment was reversed for misdirection, and the principles upon which the case was to be re-tried were fully explained by the court, as will appear by the report in 5 Casey 254. “ In strict law this covenant,” says Judge Lowrie, “ was broken by the defendants’ failure to deliver the deed at the time therein specified, and then the plaintiff hád a right to recover back his money paid and damages. It is equity that intervenes, and allows the defendants still to perform their covenant on payment of compensation for their negligence, and declares that the time of the performance ought to be regarded as immaterial, when there has been no serious change of circumstances affecting the contract, and when the party complaining of the neglect has not seriously urged the performance.
“ Th % principle has been vrell applied in this case,but there was an error in the mode of settling the compensation. The plaintiff having bought the land and paid for it, was primd facie entitled to compensation, at least equal to the interest on his payment, from the date of the defendants’ failure until the tender of performance, when it lay upon the defendants to show to the satisfaction of the jury, that the plaintiff has not suffered that amount of damage, and that that would be more than compensation. In forming this judgment, the jury will have to know what diligence and negligence there was on both sides, and what advantages and disadvantages the delay may have occasioned.”
*32As the court'therefore cléarly held that the tender of the deed was performance, and as the deed was in the possession of the court, and entirely subject to their control, it, left but one question to be settled by the jury, and that was the amount of damages upon the principles declared by the court, and no other question could be tried in the court below. A very badly drawn statement of damages had been added after the cause was sent back, which, taken in the sense imputed to it, could not have been tried under the decision of the Supremé Court, which could only be carried out by delivering the deed and release to the plaintiff, and assessing the damages for the delay in the performance of the contract; and this was actually done by the verdict of the jury, and the order of the court granting leave to the plaintiff to take the deed and release filed out of court.
Here this controversy should have ended, but the Gas Company commenced this action of ejectment against Haverstick to recover the lot No. 1904, which they had conveyed to him, and on the trial traced the title unto themselves, and stopped: then Haverstick produced their deed to him, and the Gas Company produced the record of the former suit, showing the verdict in that suit for $250.11, and claimed that to be for the whole amount recovered by Haverstick upon a rescission of the contract, and that, therefore, their deed to him was a nullity. Now, it is clear that under the instructions and ruling of the Supreme Court, this question could not have been tried or submitted to the jury, and the verdict shows it to have been merely the question of the damages for the delay of the performance that was before the court, or was passed upon by the jury. We are therefore.of opinion that this verdict and judgment could not destroy their deed, and was no evidence that the title they had passed to Haverstick was reinvested in them.
But in order to make it perfectly clear that the former recovery was for damages for delay only, the defendant offered evidence of what passed on the trial, showing conclusively that this was the only issue before the jury.
This is clearly admissible for the purpose of showing that the question of rescission was not before the court or jury, but only the question of damages for delay as directed by this court.
The court below reached the real justice of the case, for it would be monstrous to suppose a recovery of $250 could return to his grantor property for which he had paid $1500 several years before.
Judgment affirmed.