The Opinion of the Court was delivered by
Koerner, J.In December, 1842, Scott, the complainant below and plaintiff here, filed his bill of complaint against the defendant Shepherd and wife, for a specific performance in the Circuit Court of Peoria county, waiving an answer under oath on the part of defendants.
The defendant answered separately, and upon the coming in of the answers, the complainant filed an amended bill, to which Shepherd answered, and the complainant then replied generally to all the answers.
Upon final hearing at the May term of the Peoria Circuit Court, A. D. 1845, the Court dismissed the complainant’s bill, and ordered that each party pay their own costs. This decision is now assigned for error.
It is unnecessary to set out at large the allegations in the pleadings of the parties. Suffice it to say, that Scott alleged that Shepherd and wife agreed to make him a warranty deed for a certain tract of land, provided he, (Scott,) would first pay to Shepherd the sum of two hundred and seventy five dollars, which might be done by paying outstanding debts against Shepherd; that he, (Scott,) did make payments to Shepherd, and also paid outstanding claims, amounting together to more than the purchase money, and that the defendants have refused to make the deed according to agreement. The complainant also alleged the insolvency of the defendant.
These and many other allegations not material to be set out here, being wholly or in part denied by the answers. The Court directed .the forming of feigned issues, to ascertain the truth of the matter. The jury found most of the issues for the plaintiff, and amongst others, the fact of insolvency. As to the fact of payment by Scott they found specially, that the amount of $208-00 was paid by Scott by special agreement between the parties, to apply on the land contract; that Shepherd is indebted to Scott by special agreement on various other accounts in the sum of forty-five dollars, but that this indebtedness was not to be applied towards the payment for the land.
It does not appear that the Court had any other different evidence before it, upon which to found its decree. The verdict of the jury, although not absolutely binding on the Chancellor, was certainly, in the absence of all other testimony, sufficient evidence for him to deny the prayer of the complainant. It showed a non-compliance on his part with the contract as it is stated by himself. "The difference in the sum which had actually been paid by Scott and which he was to have paid, was quite small, yet this does not alter the principle which governs such cases. No rule is better settled than that a party cannot compel'the specific performance of a contract in a Court of Equity, unless he shows that he himself has specifically performed or can justly account for the reason of his non-performance. To cite authorities for a proposition so well established would be superfluous. It is said, however, by complainant’s counsel, that under the circumstances of the case he is entitled to set off, and to treat the indebtedness of Shepherd to him as payment of the purchase money, and several authorities have been cited in support of this proposition. In 9 Paige, 280, (Sutphen v. Fowler,) I find a case very similar to the present. There Sutphen filed a bill for specific performance, the conveyance of a piece of land, against the heir of Fowler. Sutphen had paid down $200-00 of the purchase money, and was to have paid the balance of $50-00 at a future day to Fowler. At the same time, he paid to Fowler fifty dollars to be applied by Fowler to purchase forty acres adjoining the land purchased. Before the time for the payment of the $50*00 had arrived, and before Fowler had applied the $50*00 received by Mm to the purchase of said land, Fowler died insolvent. The Chancellor decided that the complainant was clearly entitled to a decree for a specific performance; that as the estate was insolvent, it was proper that the $50-00 received by Fowler for another purpose, and not applied as intended, should be set off or applied in satisfaction of the same amount which remained due upon this contract.
We are not disposed to deny that under certain circumstances, the principle laid down in the case just adverted to should find its proper application. It seems to comport with a due sense of justice and equity. But in order to apply it, the party must lay a foundation for it in his bill. As before observed, Scott contends in his bill and amended bill that he paid Shepherd in cash and to others for him, and on his request more than the amount of purchase money, specifying particularly what sums he had paid to others and to whom, and not charging that there were other claims which he had on the defendant, not specially to be applied on the purchase money. The proof, therefore, that he had paid $208*00 on the contract, and that the defendant was indebted to him to an amount which added to that sum was more than he was to have paid, did not correspond with the case made by him.
While we regret that for so slight a discrepancy in the proof and the allegations the complainant should have been turned out of Court, when from the whole case it appears that the equity was on his side, we cannot, without a manifest violation of a stern rule of law, afford him the desired remedy.
The Court below was justified in its decision, and the decree must be affirmed with costs.
Decree affirmed=