The opinion of the Court was delivered by
Kennedy.— Upon very .full and deliberate consideration, I can discover no reason for changing the opinion which I expressed and delivered to the jury, at the trial of this cause, on the several points raised by the counsel for the defendant. The Court in bank also approve of it; and see no ground for granting a new trial. The reasons for a new trial being filed by the counsel, before he became possessed of the charge, as reduced to writing and delivered to the jury, will account for some of them, as it will be seen, not being sustained by any thing contained in the charge. It is not deemed requisite to add any thing here in further support of the principles and reasoning laid down and used therein to the jury. It may, however, be observed, that the action was not brought with a view to enforce a specific performance of the contract; but for the recovery merely, of such damages as the plaintiffs had sustained by reason of the defendant’s wilful refusal to carry it into effect; and this was all that was claimed on the trial of the cause. It appeared by the evidence given on the part of the plaintiffs, which was in no way contradicted, and could not therefore be well controverted, that the defendant had not only refused, to pay the purchase-money, but had positively discharged the plaintiffs from making him a title or deeds of conveyance, for the lots mentioned in *125the agreement. The plaintiffs however, notwithstanding such discharge, in order, as it would seem, that there should not be the least colour or pretence for charging them with any default, in not being willing to perform their part of the contract, prepared and executed deeds of conveyance at their own expense, conveying the lots in fee simple to the defendant, which they tendered to him; but he, after making some objections to them, not recollected by the witnesses, refused to accept; and concluded his refusal, by reminding the plaintiffs that he had before told them, that he would not accept of any deeds which they would get drawn. The plaintiffs, after this, being content to retain their lots, and to receive a compensation merely for the loss which they had sustained by reason of the defendant’s having, rather perversely, as it would seem from the evidence, refused to comply with his contract, instituted this action, for the purpose of recovering such compensation; and the defendant having discharged the plaintiffs from making to him a conveyance, could not afterwards set up, on the trial of the cause, their not having done so, as a defence to such recovery. Even had the plaintiffs claimed here the whole purchase money, the tender of a conveyance, after the defendant’s discharging the plaintiffs from making it, would not seem to have been requisite, according to the principle decided in Jones v. Barkley, (Doug. Rep. 684.) Sugden’s Law of Vend. 245,6.
Indeed, we are satisfied, that the merits of the case, as disclosed by the evidence, have been fully met and answered by the verdict of the jury. The rule for a new trial is therefore discharged, and judgment entered upon the verdict.
Rule discharged.