Smith Thompson

“ Lord Redesdale said, a Court of Equity frequently decrees specific performance, when the action at law has been lost by the default of the very party seeking the specific performance. To sustain an action at law, performance must be averred, according to the very terms of the contract. ”

“ If before the period had arrived, when the deed was to be delivered, the defendant had declared he would not receive it, and that he intended to abandon the contract, it might have dispensed with the necessity of a tender, as the conduct of the defendant might in such case, have prevented the act from being done; and he who prevents a thing from being done, shall never be permitted to avail himself of the non-performance, which he himself has occasioned. ”

“ The plaintiffs, however, aver that they were willing and able to make a conveyance of a good title, and offered so to do on the 28th day of September 1821; but this was only the day before the suit was commenced, and nearly two years after the time fixed for performance; and they set up, as an excuse for the delay in making the tender of a deed, the notice received from the defendant on the 8th of May 1821; that he considered the agreement void, and refused to carry it into effect.
The time fixed for performance, is, at law, deemed of the essence of the contract. ”