delivered the opinion of the court, March 29th, 1886.
This was an action of ejectment brought by G. W. Walker, the plaintiff below, against W. B. France, to enforce payment of the balance of purchase money alleged to be due him on articles of agreement executed by the said parties on the 20th of April, 1876, by the terms of which Walker, in consideration of the sum of $6,000, which he acknowledged to have received in hand, and 1,500,000 feet of hemlock lumber to be-thereafter delivered, agreed to sell to France some .56-5 acres •' of land, and also certain personal property, as therein set forth-a ad described. France took possession. of the prenfises but paid nothing beyond the hand money, except some $729-, which'' were due to Morss, the owner of the legal title. What the plaintiff sought to recover by his action in the court below was the value of the aforementioned manufactured lumber, estimated to be worth, at the place of delivery, $12,000.
Were we confined to the terms of the written contract as executed by the parties, the case would be of easy solution, for, although the evidence reveals the fact that France made a very bad bargain, yet having made it with his eyes open he would have to abide by it. But he alleged, and what was *210more to the purpose proved, on the trial of the case, to the satisfaction of the jury, that the written contract did not embrace the entire agreement of the parties, and that he- was induced to sign it under the false representations of the plaintiff, accompanied with his solemn guaranty, that there was outlie property 10,000,000 feet of hemlock lumber, and that the saw mill, which formed part of the premises, had power, and was in condition, to cut at least 2000 feet of boards on any day of the entire jrnar, and 1000 feet for every hour of *the 24 when the upper mill oivner did not withhold the water. Now, as it was admitted that there were not over 3,000,000 of hemlock on this tract, and as it was proved that from dilapidation and want of power the mill could not perform what it was Warranted to do,- it is clear that the defendant could set up this warranty, though in parol, as a defence to the plaintiff’s cláim. Of these representations and. warranty the testimony was clear, positive and abundant, so that the question turned principally on the credibility of the witnesses, and was one, of course, for the jury. So far as the court was concerned it was limited to a proper and formal submission of the evidence, and instructions as to the proper measure of damages. In these particulars the learned counsel for the plaintiff has failed to convict the court of ■ error. That a written agreement may be modified, explained, reformed, or altogether set aside by parol evidence of an oral 'promise or undertaking material to the subject matter of the contract, made-by one of the parties at the’time of the execution of the writing, and which induced, the other party to put his name to it, must now be regarded as a principle of law so well settled as to preclude discussion. All those assignments of error, therefore, which involve the court’s rulings on the principle here stated, or on the evidence admitted to prove the plaintiff’s representations as to the condition of the property and quantity of timber upon it, as well as on the testimony admitted to show that these representations were in fact not true, must be dismissed as having in them,nothing which we can sustain.. This, leaves for our further vconsideration only the 11th and 12th assignments, whichenrbrace the rulings .of- the court on the. question of the damages ,to which the defendant was entitled by wajr of recoupment. In considering the proposition raised by these assignments,, we are not to forget that the plaintiff’s action is an equitable one, and that his right to recover depends- upon the fact that he has substantially performed his part of the contract, His vendee cannot be compelled to pay for that which he cannot give him, neither can he dispossess the defendant, until he has refunded the -purchase money which he received, andr, compensares .him for, his improvements: Richardson v. *211Kuhn, 6 Watts, 299. In the case in hand, France stands on the defensive only; he may defeat Walker, but can recover against him nothing but costs. To this end the defendant had but to show that the plaintiff failed to comply with his part of the contract in some material particular. For, having paid part of the purchase money, and being in lawful possession of the premises, the plaintiff, on a partial performance on his part, could neither force his vendee to pay the balance of the purchase money, nor, as an alternative, compel him to turn out until by re-payment of what he had received,- and a compensation for improvements, if any such there were, he had restored that vendee to the position in which he found him at the time of the execution of the contract. When the matter in hand is looked at in this light, the plaintiff certainly has no ground of complaint as to the instructions of the court, for it held the defendant to a proof of damages equivalent to the whole balance of the purchase mone]’’. The defendant showed the payment of $6,000; that there was a warranty of 10,000,000 of hemlock lumber, and that the mill had power to cut not less than 2000 feet of boards on any and every day in the year, whilst the facts proved were that there were not more than 3,000,000 feet of hemlock lumber on the tract, and that there were some five or six months in the year when the mill could not be run at all for the want of power. Here, then, was enough of itself to defeat the plaintiff’s action ; an agreement to convey 10,000,000 of hemlock lumber, and an offer to perform on conveyance of 3,000,000. Surely this will not do; he cannot thus compel the defendant to a performance of the contract when, in so material a particular, he admits his own inability to perform his part of it. But as a mere matter of recoupment we cannot see how the court could have submitted a better rule for the ascertainment of damages. The principal value of the property was in its timber. Undoubtedly, if we have regard to the weight of evidence, the'hand money fully covered the value of the land as the defendant received it, and so the jury must have found, for the question, as the court put it, was whether or not anything was due the plaintiff, allowing no certified balance to be found for the defendant. Now, the manner proposed for the solution of this question was direct and simple : what was the difference between the value of 3,000,000 feet of hemlock lumber and 10,000,000, and this difference found, was it enough to cover the balance of the purchase money? So with the mill; assuming that its capacity was materially less than that warranted,- what was the difference, and how was this difference to be reduced to a money value ? It was not so situated that it could be rented as a custom mill; it could not be made *212to fill the warranty by repair or reconstruction, for. the principal defect was in the deficiency of its water power. These means of estimation- could not, therefore, be resorted td; hence, the court and jury had but one method to which they could'have recourse, and that was to ascertain from the evidence what was the customary value of the earnings of such a mill per thousand, after deducting all expenses, and so, by comparison, arrive at the difference of the value of the mill as warranted, and as it was when delivered to the defendant. This was the method adopted by the court, and as we have discovered none better, we can do no less than give it our approval.
The judgment is affirmed.