Miles v. Stevens

Where an article of agreement for the sale of lands contained, on the part of the vendor, the following stipulation: “The said A. hereby agrees to sell unto the said B. and 0,, their heirs and assigns, one undivided half part of two hundred acres of land, situate on Elk Creek, in the county of Erie, and including the mouths of said creek; said two hundred acres to be cut off the lands of the said A. by lines hereafter to be designated by the said A., B. and C., or a majority of them, so as to embrace within said two hundred acres the lands at the harbour of said Elk Greek best suited for the site of a city intended to be located on the same:” — Held, that these words were not only a description of the premises agreed to be sold, but also a representation by the vendor, that there was a harbour there, which, being the assertion of a material fact, would affect the contract, and attaint it with fraud, if it were proved to be untrue. Xf, in such case, the court had submitted the construction of the article of agreement to the jury, and instructed them that they might infer from it alone, misrepresentations by tlie vendor, it would have been error; but, where other evidence had been given, to submit the said agreement, with all the other evidence in the cause, to the jury, and to instruct them «to weigh all the facts in the case, and to say, whether they tend to prove that the vendor misrepresented the condition of the mouth of Elk Creek, relative to a harbour,” and if they believed the vendor had practised a fraud upon the vendees, in relation to the existence of a harbour at that place, that then such fraud would entirely vitiate the contract, is not error. Where a contract is made under a mistake, or in ignorance -of a material fact, one which is of the very essence of the contract, it is voidable and relievablc in equity. And it seems, that this rule applies not only to cases where there has been studied suppression or concealment by one side, which would amount to actual fraud, but also to many cases of innocent ignoranee and mistake on both sides. Where a contract was made under the persuasion that the Legislature of Pennsylvania and the Congress of the United States would pass laws, the one for the termination of the Erie Extension of the Pennsylvania Canal at the mouth of Elk Creek, and the other making appropriations for a harbour at the same point; and where the main and only inducement to entering into this contract was, the mutual expectation of the parties that the land immediately adjacent to the mouth of said creek would become the site of a great city, as the direct consequences of the improvements thereafter to be made at that place by the general and state governments ; it was held, that where the basis and inducement" to making such contract utterly failed, without any fault imputable to any person, it -would be contrary to equity to compel the payment -of the purchase money. Where a deed is sought to be made effectual, on an event unexpected to both parties, the party seeking to enforce it is unjust and inequitable in his demand. Where parties to a contract have presupposed some facts or rights to exist, or that they will thereafter exist, as the basis of their proceedings, which in truth do not exist, or are prevented from happening by unforeseen causes ending in mutual error, under circumstances material to their character and consequences,, such contract, on general principles, is inoperative and invalid. If a mistake have been made on the trial, either in the admission or rejection of evidence, or in the charge, which, it is apparent, did not prejudice the case of the exceptant, it is not error, for which a reversal will be decreed. Evidence, that there was no harbour at the mouth of Elk Creek, and not the slightest probability that one would be constructed, was relevant and admissible; as it went to contradict the representation of the vendor, that there was a harbour there. In an action to recover a part of the purchase money of lands sold, want of title in the vendor to the property, if proved, is a complete defence to the action in law and in equity, and evidence to show it is admissible. Where evidence has been admitted, whether it be secondary or not, or whether it were properly or improperly admitted, becomes immaterial, if the Court, in their charge, rule out the point of defence to which such evidence was applicable. If the Court allow a party to take out a portion of a deposition and part of a sentence, leaving what stands to convey a different meaning from what it would do with the context, it is palpable error. The journal of the House of Representatives of the United States, together with a letter of the Secretary of Wav, and a report of a Topographical Engineer, reported to the House in pursuance of a resolution, if properly authenticated, are evidence to prove, that there was no harbour at the point designated, and that it was practicable and in the contemplation of the government to make an artificial harbour there. But they ' are not evidence to prove, that third parties had knowledge of the facts contained in them, merely because they were the acts of authorized and accredited agents of the government, and such third parties are not bound to lake notice of them. The mere expression of opinion by a witness who was acquainted with Lake Erie and the harbours thereof, was not evidence of the practicability of making a good artificial harbour at the point designated, similar to those already constructed on the lake. The fact, that a good harbour could be made there, was evidence; but proof as to harbours and their construction elsewhere, was not admissible.

May 15 and June 26. This was an action brought in the District Court of the County of Lancaster, to September Term, 1844, by the plaintiff in error, who was plaintiff below, against Thaddeus Stevens, surviving Charles Ogle, deceased, upon the covenant of the defendant, to pay to the plaintiff five thousand dollars on the first day of August, 1837, in the following article of agreement :— “Articles of agreement, made March 3,1837, between James Miles, of the county of Erie and state of Pennsylvania, of the first part, and Thaddeus Stevens and Charles Ogle, both of the state aforesaid, of the second part, as follows: The said Miles hereby agrees to sell unto the said Stevens and Ogle, their heirs and assigns, one undivided half part of two hundred acres of land, situate on Elk Creek, in the county of Erie aforesaid, and including the mouths of the said creek; said two hundred acres, to be cut off the lands of said Miles, by lines hereafter to be designated by said Miles, Stevens and Ogle, or a majority of them, so as to embrace within said two hundred acres the lands at the harbour of said Elk Creek best suited for the site of a city intended to be located n the same, by said Miles, Stevens and Ogle. In consideration whereof, said Stevens and Ogle hereby agree to pay unto said Miles, on the first day of August next, the sum of five thousand dollars. And further, to allow said Miles to retain out of the purchase money, arising from the sale of lots in said city, the sum of ninety-five thousand dollars. The said Miles hereby agreeing to look to no other fund for payment of said ninety-five thousand dollars, but the moneys that may be received from the sale of lots in said intended city.' It being distinctly understood, that said Stevens and Ogle, their heirs, executors, administrators or assigns, are to be in no event liable, or held responsible to said Miles, his heirs or assigns, for said sum of ninety-five thousand dollars. It is further agreed by and between said Miles, Stevens and Ogle, that after said Miles shall have received the aforesaid five thousand dollars of the said Stevens and Ogle, and shall also have retained out of the moneys that may come into his hands, arising from the sale of lots in said city, the sum of ninety-five thousand dollars as before mentioned, he 'shall execute a deed, assigning and conveying, clear of all encumbrances, unto said Stevens and Ogle, their heirs and assigns, the one undivided half part of all lands and lots then remaining unsold, part and parcel of said two hundred acres before described, and also one half of all the purchase money due, and to grow due for sales of lots, over and above said ninety-five thousand dollars above mentioned. It is also further agreed between said parties, that if the said ninety-five thousand dollars shall not be received by said Miles, within ten years from the date hereof, in that event, the said Stevens and Ogle, their heirs and assigns, shall relinquish all claim to any interest in said two hundred acres of land; and the same shall remain to the said Miles, his heirs and assigns, as fully as if this agreement had not been made, unless said Stevens and-Ogle shall, at any period before the expiration of said ten years, prefer to pay, and do pay unto said Miles, his heirs and assigns, the balance that may be due to said Miles, his heirs or assigns, of the fifty thousand dollars, the estimated valuation of the one half of said two hundred acres of land.' It is further agreed, that the grain now in the ground shall remain to said Miles, as also any spring crop that he may put out. It is further agreed, that said Miles shall not sell or dispose of his interest in said two hundred acres of land, until said first day of August next.” The defendant pleaded payment, with leave to give the special matter in evidence, on which issue was joined. Of this special matter the defendant gave notice. The plaintiff gave in evidence the article of agreement, the copy of which, in his possession, was in the handwriting of Charles Ogle, and rested. The defendant proved, by the depositions of Irwin Camp, Daniel Dobbin, and James D. Dunlap, Esq., taken in December, 1844, that there was no natural or artificial harbour for the shipping navigating Lake Erie, at the mouth of Elk Creek, and that near the mouth the bottom was rocky. The depositions also proved, that the mouth of the creek could be dug out and a harbour made there, as at the mouth of any other creek; that the father of the plaintiff was the reputed owner of the land, agreed by the article to be conveyed, and that the deponent had searched the records of Erie county, to find a deed from him to his son James Miles, the plaintiff, and could not find such deed; that the land contracted for was not worth more than $25 per acre; that the Erie Extension of the Pennsylvania Canal was located in the borough of Erie, in the fall of the year 1838; that there is no outlet lock from this canal at Elk Creek, from the mouth of which, it is distant about two miles and one half. Having given these depositions in evidence, the defendant rested. The plaintiff gave in evidence the following letters from Thaddeus Stevens, the defendant, and Charles Ogle:— “ Gettysburg, August 21, 1837. “Dear Sir — When I found it impossible for me to visit the west this summer, as I had intended, I wrote to Judge Ogle to go on, and do such things in our joint names as might be mutually satisfactory. I have not since heard from him — I suppose he is now at Washington. It seems to me, it would be advisable not to have us [Ogle, Watts and myself] seen there, until after the next session of the Legislature. I have no doubt as to the^jiai location. “Yours, , Thaddeus Stevens. «Jas. Miles.” Post-marked, « Gettysburg,” and directed « To Mr. James Miles, Girard, Erie county.” “ Washington, February 12, 1838. « Dear Sir — I have deferred replying to your favour, until I would hear definitely from Mr. Stevens, in relation to the Elk Creek affair. I have had several communications from him on the subject. In the first, he suggested the propriety of cancelling with your consent the whole concern. In his last, he states he will be content with any arrangement you and I shall make, with a declaration, that it will not be convenient to pay any money before next autumn. He says, the canal will certainly be located on the western ron‘e, and an outlet eventually will be made at Elk Creek, but believes the speculation a bad one, although it may turn out otherwise. In my opinion, the mouth of Elk Creek will some day become a site of great importance, but whether that day will arrive before the spring of 1847 is very doubtful, from the adverse change that has taken place within the last year, and which is likely to continue for an indefinite period. I trust it will not be taxing your justice and generosity too far, by asking an extension of our interest in the Elk Creek property, to the year 1850; and a grant of further time for payment of the hand money, say one half on the first day of November next, and the balance on the first of April, 1839. In regard to the harbour, I have great confidence that we will succeed in obtaining an appropriation of 35,000 dollars this session. The subject is now under consideration, and it will be unnecessary to forward new petitions / they might arouse the jealousy of the citizens of Erie, and cause them to remonstrate against the measure. I had all the old petitions on this subject hunted up and handed to the member from your district, (Mr. Plummer,) who will present them to the House this day, when they will be referred to the appro•priate committee. I will be glad to hear again from you as soon as convenient. Yours, very respectfully, “Charles Ogle. “Mr. J. Miles.” Post-marked, “Washington city, D. C.;” franked by “ C. Ogle;” and directed “ to James Miles, Esq., Girard, Erie county, Pennsylvania.” The plaintiff also proved by William Watts, Esq., a witness well acquainted with Elk Creek and the navigation of Lake Erie, that Elk Creek puts into Lake Erie about seventeen miles above the town of Erie ; that it is generally very shallow, and a rapid stream, having a great deal of fall, until within half a mile from its mouth; and from that point to its junction with the lake, the water in it was deep dead water, from six to ten feet deep; that its natural width was from one hundred to two hundred and twenty feet, and that it might be excavated to make it six hundred feet wide; that at the mouth of the stream there was a bar of sand thrown up by the lake, on which the water was very shallow; that when there was a freshet in the stream it would sometimes wash the sand-bar from its mouth, when the water then was from three to six feet deep ; that this sandbar could be removed, and a pier constructed, which would prevent it from filling up; that vessels very frequently come off the bar, and are lighted, and goods taken within the bar into the creek. There was a storehouse near the outlet, built in the meadow of the plaintiff; that the witness had known a vessel of two hundred tons burden built up the creek, launched there, and floated out in the freshet; that steamboats navigating Lake Erie draw, upon an average, eight feet of water, and sailing vessels from four to seven and a half feet; that the lockage of the canal from Elk Creek to Erie was very great; to the mouth of Elk Creek it would have been about the same; on the former route there are two aqueducts, one of eleven hundred feet, and one from nine hundred to a thousand feet. The difference in distance is thirteen miles and a half. The cost of constructing the canal to Erie was much greater than it would have been to construct it to the mouth of Elk Creek. The witness also proved, that the plaintiff resided in the county of Erie; the defendant in the county of Adams, and Charles Ogle in the county of Somerset, when the article of agreement was executed; that the plaintiff was a farmer, and the defendant and Mr. Ogle were lawyers by profession; that the plaintiff and defendant were seen by the witness in Harrisburg, the last of February and the beginning of March, 1837; that the state legislature was in session; that the plaintiff resided on the land, at the mouth of Elk Creek, and was known by the witness to have resided there from the year 18.29; that he had made extensive improvements upon it, having built two dwelling houses, a large barn, double crib and wagon shed, and cleared one hundred and fifty acres, and he resided himself near the mouth of Elk Creek. In answer to a question by the defendant, he said he had never seen the defendant in the county of Erie. This was the evidence given in the cause. On the trial, the following bills of exception were taken:— The plaintiff objected to the depositions of Irwin Camp and Daniel Dobbin, on the ground, that until some evidence was given to prove that the plaintiff had represented that there was, at the mouth of Elk Creek, a harbour for shipping navigating Lake Erie, these depositions were irrelevant. He also objected to particular parts of the depositions which he underscored. The court overruled the objection and admitted the depositions in evidence. The deposition of Daniel Dobbin contained the following sentenee : — “ There is no harbour there now, and deponent never considered therewas much chance ofmaldng one. It is too limited, too small." This sentence was underscored and particularly objected to. The court rejected the words, “ and deponent never considered there was much chance of maldng one," and admitted the deposition with the rest of the sentence. The plaintiff also objected to the deposition of James D. Dunlap, for the same general reason; and also, particularly, to the following sentence, which he underscored: — « Old Mr. Miles, the father of the plaintiff, was the reputed owner of the land. I searched the records of Eñe county to see if there was a conveyance from him to James Miles, but neither the recorder or myself could find any." The court overruled these objections, and admitted the deposition with this sentence. The admission of these depositions formed the first three bills of exception, which were assigned for error here. The plaintiff offered the journal of the House of Representatives of the Congress of the United States, for the year 1833 and 1834, containing a resolution of the House, calling on the Secretary of War for a copy of the report and survey made by Col. Kearney, United States Engineer, of a harbour at the mouth of Elk Creek and Lake Erie, and the report made in pursuance of the, resolution, published by authority, with proof that these journals and documents, as printed, were furnished to Mr. Heister, a member of that House, by the clerk thereof. The report was of a survey of “ a harbour at the mouth of Elk Greek on Lake Erie," and the estimate of $35,000 “for the purpose of removing the obstructions to the navigation and forming a harbour there," with a description of the work, and a strong recommendation of it for the commerce of the lake. The plaintiff also offered this evidence in connection with the letters of the defendant and Charles Ogle, and also without so much of the report as referred to the action of the board of Internal Improvements. To these several offers the defendant objected,'and the court sustaining the objection overruled the evidence; and these formed the fourth,fifth, and sixth bills of exception, which were assigned for error here. The plaintiff offered to prove by Mr. Watts, that^all the harbours of Lake Erie are constructed artificially, and that a harbour similar to these might be constructed at the mouth of Elk Creek, by the removal of the bar, and’the erection of similar works for the protection and preservation of the harbour. This evidence, on objection, was rejected by the court. The plaintiff offered to ask the witness, “Whether a good artificial arbour could be constructed at the mouth of Elk Creek?” which was objected to by the defendant. The court said, « The proper course of examination would be, to inquire of Mr. Watts with respect to the locality, the ground on each side, and all other features pertaining to a harbour,” and the court overruled the question. The plaintiff proposed to ask the witness, “If the creek were enlarged, (as he said it might be,) the bar removed, and the pier made, would it be a good harbour for vessels navigating Lake Erie?” This question was overruled and the evidence rejected. The plaintiff proposed the following question to the witness:— “ Would a harbour six hundred feet wide, from eight to ten feet deep, constructed at the mouth of Elk Creek, admit the vessels usually navigating Lake Erie, so as to protect and conduct the commerce upon it ?” This question, on objection, was also overruled. The plaintiff also offered to prove that Messrs. Babbitt and Miller were members of the legislature, from the county of Erie, attending the session, when the article of agreement was made ; that the former resided in the borough of Erie, and the latter within a few miles of Elk Creek. This offer was rejected and the evidence overruled, and the rejection of these offers and evidence was the subject of the seventh, eighth, ninth, tenth, and eleventh bills of exception, all of which were assigned for error: the errors assigned corresponding in number with the bills of exception. Errors were also assigned in the answers of the Court to points submitted on the part of the plaintiff and defendant respectively. The plaintiff’s points and these answers were as follows:— Second point. — That the letter of Charles Ogle, of the 12th February, 1843, in which' he says, “In regard to the harbour, I have great confidence that we will succeed in obtaining an appropriation of $35,000,” is evidence to show, that the parties understood that the erection of works at the mouth of Elk Creek by the general government, was required in order to make a harbour at that place a perfect one; and in that case, putting into the agreement on which suit is brought the words, “ so as to embrace within the said two hundred acres the land at the harbour of Elk Creek,” is the mere description of the place for the site of a city, which the parties intended to locate; and these words, thus used in the agreement, furnish no evidence of fraud on the part of James Miles, although it is now proved, that without such works, there is no access to the harbour at the mouth of Elk Creek, and the plaintiff is therefore entitled to recover. Answer of the court. — The letter mentioned in this point appears, by its date, to have been written nearly twelve months after the agreement in question. It speaks its purpose plainly; and the jury must determine as to what it tends to prove. In relation to the words quoted from the agreement, it is for the jury weighing these, with all other facts in evidence, to say, whether they tend to prove that James Miles, the plaintiff, misrepresented the condition of the mouth of Elk Creek, relative to a harbour, or not. Third point. — That the letter of Mr. Stevens of August 31, 1837, and also the letter of Mr. Ogle of February 12, 1838, furnish evidence of the fact, that they knew that there were no improvements at the mouth of Elk Creek; but also of the entire practicability of such improvements, and as contemplated by the parties, at the time of making the agreement on which suit is- brought. Answer of the court. — Of this matter, as a question of fact, the jury must judge, the letters being in evidence before them. Fourth point. — If neither James Miles, or Thaddeus Stevéns and Charles Ogle, knew, when they entered into the agreement of the third of March, 1839, whether a harbour at the mouth of Elk Creek would be made perfect by the appropriation of money by the general government, or that the Erie Canal would be made to terminate there, or that an outlet lock would be made there to connect it with the Erie Canal, and neither of said parties could know what would be the value of a site for a city, embracing the harbour at Elk Creek, no inadequacy of consideration or disproportion between the value of such site, and the sum agreed to be paid, would, in equity, bar the right to compel a fulfilment of the agreement, or prevent the plaintiff from recovering the $5000, and interest on the same, from August 1, 1837, and for which he brings suit. Answer of the court. — If the fact assumed, that neither of the parties could know what would be the value of a site for a city at the mouth of Elk Creek, embracing a harbour, were correct, and if the parties entered into the contract, without being induced by the expectation that such a city would spring up there, and make the land of incalculable value to the proprietors, then; indeed, there might be ground for the conclusion that the inadequacy of consideration, or disproportion between the value of such site and the sum agreed to be paid, would not bar the right of the plaintiff, in equity, to compel a fulfilment of the agreement by the defendant. But if the jury believe that the building or growth of a city was the sole object of this contract, the practicability of which was entirely dependent upon public acts and events, which did not happen, as all the parties expected they would, and that the basis of the contract has wholly failed, it would be inequitable and unjust to compel the defendant to pay the sum demanded in this action. Fifth point. — Any statement made to the jury by Mr. Stevens, who appears to try his own cause, which is unsupported by proof, the jury is bound to reject and throw out of the case. Answer of the court. — The statements of counsel in their addresses to the jury, whether pleading their own cause or that of others, are not evidence. This, I suppose to be the meaning of the fifth proposition; and the truism applies equally to every counsel in the cause. The defendant’s points, and the answers of the court which were assigned for error, were as follows: Second point. — That when a deed is sought to be made effectual on an event which is unexpected to both parties, a court of equity denies its authority. The party seeking to enforce it is unjust and inequitable in his demand, and this furnishes a valid objection to the adverse party. Answer of the court. — Answered in the affirmative. Third point. — That where parties have presupposed some facts or rights to exist, as the basis of their proceedings, which in truth do not exist, such contracts made in mutual error, under circumstances material to their character and consequences, seem, on general principles, invalid. Answer of the court. — Answered in the affirmative. Fifth point. — If the jury believe that the main value of the property sold, in the opinion of both sellers and buyers, was the expectation that the Erie Canal would terminate on said land, or that there would be an outlet into Lake Erie there, and that there was a harbour that would produce a city at the mouth of Elk Creek, and if such facts constituted the main value of said land, and all such facts and expectations failed, then plaintiff ought not to recover. Answer of the court. — Answered in the affirmative, provided the jury believe that these circumstances, which constituted the basis of the contract, have been so changed by the course of public acts and events, that it is no longer possible that a* city can be laid out or founded within the ten years mentioned in the contract. Sixth point. — If plaintiff represented that there was a harbour at the mouth of Elk Creek, when in fact none such existed, or is likely to exist, and if such fact was the main inducement to the purchase by defendant, and if defendant was never in the county of Erie, but relied on plaintiff’s representations, that plaintiff cannot recover, and the jury are at liberty to infer such representations from the evidence in the article itself. Answer of the court. — If such misrepresentations as is herein stated have been proved to the satisfaction of, the jury, the plaintiff cannot recover. The article is in evidence, and the jury will of course draw from it such inferences with respect to the representation of the fact of a harbour by James Miles, as its language, and especially the words of the stipulation which constitute his part of the contract, may seem to them to warrant. In the general charge, the court said to the jury, “ This action is brought against Thaddeus Stevens, the surviving joint contractor, (Charles Ogle, Esq., being dead, as before stated,) to recover the sum of $5000 mentioned in the agreement, as payable on the 1st of August, 1837, with the interest accruing thereon from that day. The defendant contends that this money ought not to be paid, and ought not to be demanded. First, because it is said there was fraud and misrepresentation on the part of the plaintiff, by which the defendant was misled, to enter into this contract; the imputed fraud consisting in the plaintiff pretending that there was a harbour at the mouth of Elk Creek, whereas no such harbour existed; and that he was the true owner of the lands lying at the mouth,- and on both sides of the said creek near the mouth thereof, when he had in fact no good title to the land. Secondly, because the whole cohtract was founded on the supposition and belief of the parties, that the Erie Extension of the Pennsylvania Canal would terminate at the mouth of Elk Creek, and the government of the United States would make a large appropriation for the opening and establishing of a harbour at the mouth of the said creek, in consequence of which, a city would be built up at that place, and the land there become of immense value as á city plot; and because these events, not having occurred, neither the canal having terminated at the mouth of Elk Creek, nor any appropriation having been made to open and establish a harbour there, the basis of the contract .is, and has been, wholly removed and destroyed. Wherefore it would be against equity and good conscience to enforce the same, by requiring the payment of the said $5000. “As to the first point of this defence, it is undeniable that if there was fraud or imposition practised upon the defendant, by the plaintiff inducing the former to enter into this agreement, such fraud would entirely vitiate the contract, and the plaintiff, for that reason, could not recover. It is for the jury to say, whether there was or was not such a misrepresentation in regard to the facts of an existing .harbour, ór the plaintiff’s title, as the defendant contends there was;, and it must be decided by you according to the evidence, for fraud must be proved, either directly or by such circumstances in the conduct of the party charged with it as are inconsistent with honesty and the principles of morality. Fraud has been defined to be any cunning deception, or artifice used to circumvent, deceive, or cheat another. This definition, though sufficiently descriptive of what may be called positive, actual fraud, where there is an intention to commit a cheat or deceit upon another to his injury, does not include the large class of implied or constructive frauds which are within the remedial jurisdiction of a court of equity. Fraud, in the sense of a court of equity, properly includes all acts, omissions, and concealments, which involve a breach of legal or equitable duty, trust or confidence justly reposed, and are injurious to another. And courts of equity will not only interfere in cases of fraud, to set aside acts done, but they will also, if acts have by fraud been prevented from being done by the parties, interfere and treat the case exactly as if the acts had been done. 1 Story’s Equity, ch. 6.” On the second point stated, of what the court said, so much as follows was assigned for error in the twenty-first specification of error: “ Now, if the parties had made the agreement in question, on the mistaken idea that the legislature of Pennsylvania and the United States had passed laws, the one for authorizing the canal to be extended to the mouth of Elk Creek, the other making appropriations for the harbour there ; in such a case, ¡here is no doubt but that the contract would be set aside, and the defendant be relieved in consequence of this mistake. The difficulty is to determine, whether the same principle applies to a mistake as to the future passage of these laws, with reference to which the agreement was made, and made in the confident assurance of all parties, that they would pass; so much so, that it is admitted, that without such expectation and assurance, it would not have been made at all. I believe the case, in this aspect, is a novel one, though that of Quick and Stuyvesant, in 2 Paige, 84, resembles it essentially. The acts to which the parties to this agreement all looked forward, were public acts of independent governments. That they did not pass, as was expected and desired by the parties, is not imputed or imputable, from any thing we have heard, to the negligence of the defendant. The contract was made in contemplation of the passage of such acts; and the advantages which they all hoped to enjoy were entirely dependent upon the establishment and growth of a city at the mouth of Elk Creek, which, without those acts passed, is as much an impossi bility, as if that creek ran dovm into Lake Erie through a narrow and lengthened ravine three hundred feet deep, and were bounded at the mouth, on either side, by a precipitous bluff facing the lake, three hundred feet high. As to the equity, the real justice of this matter', if by the failure of these acts- of government, the entire basis of the contract in question, < the efficient cause of concoction,’ is now as completely non-existent and impossible, and the purpose and object of the parties rendered as impracticable, as if they had contracted under a mutual and innocent mistake, believing that the acts had already been passed, I cannot see any essential difference in the justice of demanding the money sued for, in the one case.and in the other. “ The instruction of the-court upon this head, therefore, is, that if the jury believe that the main and only reason for this contract was the mutual expectation of the parties, that the land immediately adjacent to the mouth of Elk Creek was about to become the site of a great city, as the direct consequence of the Erie Canal being taken by the authority of the government of Pennsylvania to that point and terminating there; and .of an appropriation of the general government for opening and establishing a'harbour, and that this event is no longer morally possible, the canal having been extended to the borough of Erie, seventeen miles distant from the mouth of Elk' Creek; then, as the,basis of the contract has utterly failed for that reason, if the jury so believe, I am of opinion, that it would be inequitable to enforce the payment of the $5000, and that the plaintiff ought not to recover.”' In answer to points, put by the plaintiff and defendant on* the subject of the plaintiff’s title, the court said:— “ 8. The only evidence of title is that of his continued residence on the premises since 1829, and certain improvements made by him, by clearing about two hundred acres of land, and erecting two dwelling-houses, a barn, and other buildings. This settlement and improvement gives him — if the land be vacant — a settlement and improvement'right, which he may perfect by warrant and survey, in preference to any other applicant, under the < act for the sale of the vacant lands, within this Commonwealth,’ passe'd 3d April, 1792. As the plaintiff was not obliged by the agreement to make a deed to the defendant, until he received the $5000, and also the $95,000, out of the city lots to be sold, unless within ten years the defendant and Charles Ogle should pay to him the balance that might be due to him, of $50,000, the estimated valuation of the one half of the said two.hundred acres of land; so far as title may be necessary to sustain this' suit, the inchoate right by settlement and improvement, as above explained, is sufficient: • inasmuch as the plaintiff cannot be called upon by the defendant to make and convey a title to him, before the defendant performs what the agreement requires him to do, previously to such a requisition upon the plaintiff.” The eleven bills of exception were numerically assigned for error; and the answers of the court to the plaintiff’s second, third, fourth, and fifth, and to the defendant’s second, third, fifth, and sixth points, numbering from twelve to nineteen, both included. The nineteenth and twentieth specifications of error were as follows:— “ 19. The court erred, in their answer to the sixth point, submitted by defendant, and in leaving to the jury the determination of the question, whether any misrepresentations, as stated in said point, had been made to plaintiff or not — when in fact and in truth, there was no evidence whatever, that such misrepresentations had been made at any time; and in referring to the jury the construction of the article of agreement, and in telling them that they might infer from it misrepresentations by plaintiff. “20. The court erred, in that part of their general charge in which the court say, ‘It is for the jury to say, whether there was, or was not, such a misrepresentation in regard to the facts of an existing harbour, or the plaintiff’s title, as the defendant contends there was.’ ” The twenty-first specification of error, was of the general charge, as above stated.