M. M. Browne and L. M. Ryce for appellants. J. H. Sweeney, for appellee. SCENES like that which occurred upon the conviction of Lee for murder at the central criminal court are frequent, and arise from the practice of "calling upon" the prisoner after verdict and before sentence. When Lee proposed, in response to the usual question, to discuss the evidence over again, and was stopped by the judge, he said: "Then, why am I asked if I have anything to say? requested to do so, willfully, unlawfully and maliciously refuses to issue execution upon said judgment; and that plaintiffs are without any plain, speedy and adequate remedy at law in the premises; and a writ of mandamus is prayed, compelling the defendant to issue an execution as provided by law. There are other allegations in the petition, not necessary to be stated here. The demurrer presents the question whether or not an action of mandamus will lie to compel the clerk to issues an execution upon a judgment. It is provided, in section 3376 of the code, that “an order of mandamus It is a mere farce." So it is, and a wrangle shall not be issued in any case where there is a plain, speedy and adequate remedy in the ordinary course of the law, except as herein provided. between judge and prisoner, in which the prisoner has the better of the judge, is not a seemly preliminary to the judge passing sentence of death. The practice of calling This proceeding is not within the excep- on the prisoner after verdict, now that the tion provided in this section of the code, legal technicalities which was used formerly and the question we are required to deter- to be raised at that stage no longer exist, mine is, have the plaintiffs a plain, speedy answers no purpose except to tempt the and adequate remedy in the ordinary course prisoner to reopen the facts of his case, o of the law? Section 2923 of the code pro- to glory in or justify his crime. If it is still vides that "for good cause shown, a judge's desirable that the prisoner should have ar order may issue in vacation, directing any opportunity of moving in arrest of judgment, of the officers of the court in relation to the the formula might at least be altered in accordischarge of their duties. We are not ad- dance with the fact, so that he may be called vised by counsel for plaintiffs why they did on to allege any ground of law why sentence not avail themselves of this more speedy should not be passed, and not at so supreme remedy than an original action in mandamus. a moment be solemnly invited to do what There can be no doubt that an application he is instantly forbidden doing as soon as for an order is plain, speedy and adequate, he attempts it. (London Law Journal.) and it is expressly provided by law. We are not to presume that if the defendant were MUTUALITY AND SPECIFIC PER FORMANCE OF CONTRACT RELATING TO LAND. speedily ordered to issue an execution on this judgment, that he would refuse to obey the order, and subject himself to the penalties of a willful disobedience of the order of the court. We must not be expected to follow the argument of counsel upon the nature of Defendants, in consideration of $100 in hand and $3.400 to be paid inside of ten days togeter whith execution of a mortgaze for the balance agreed to cowey certain lands to plaintiff by good and sufficient warranted deed. Withn the ten days plaintiffs agent tendered the payment of $3.00, and promised the execution of the mortgage as agreed as soon as defendant who was then absent, should return. Thit tender was refused by defendant and as soon as he ten days expired, gave notice that they recinded the contract. Upon an action for a spdcific performance of the contract it is HLD that time was not of the essence of the contract an that plaintiff was entitled to recover. ACTION for specific performance. The court below gave judgment for plaintiff. The facts appear in the opinion. Baxter and Grethen, for appellant. Thomas Lowery and William H. Eustis, for respondents. VANDERBURGH, J. This action is brought for the specific performance of an agreement for the conveyance of real estate. examining the title and completing the purchase with one Davidson, their agent. They omitted however to furnish him a power of attorney, or any written authority to act for them. Davidson received the abstract for examination on the 18 th of October, and On October 15, 1881, which was the date on the 24th of October, being unable, owing of the contract, and in consideration of the to the continued absence of the plaintiffs, to sum of $100, expressed in the writting and procure the execution of the mortgage, as paid on the delivery there of, the defendants, required by the agreement, he sought defendHenry Wacks and wife, bargained and ant Henry Wacks, and endeavored to agreed to convey to the plaintiffs the pre- induce him to agree to other arrangements mises in question, being the homestead of in reference to the security for the deferred the defendant Henry Wacks, in the city of payment of $4,000, he being prepared to Minneapolis. As recited in the agreement, make the cash payment of $3,400. These which was under seal and signed by the de- propositions the defendant took under fendants only, they were "to furnish im- advisement, and promised to consider the mediately to said Austin & Grays an abstract matter, and on the next day Davidson, being of title to said premises, showing same free still unable to communicate with the plainadd clear from incumbrauces; and said tiffs, offered to make the cash payment if Austin & Grays, within ten days from and defendant would execute the required deed this 15th day of October, 1881, are to pay to plaintiffs, and deposit the same in escrow us $3,400 additional, and give first mortgage for a short time until he could communicate on said premises for $4000, dated October, with plaintiffs and procure the due execution 25, 1881, due on or before three years from of the mortgage. This offer was finally and after said sale, with interest at the rate rejected by defendant, who duly tendered of eight per cent. per annum, payable semi- on that day a warranty deed of the premises annually, total consideration for said prem- to Davidson, and demanded a strict comises, $7.500, payable as above; we the under- pliance with the agreement, and notified him signed, to retain possession of said premises that the same would be rescinded unless so until December 1, 1881, without rent, and complied with. from December 1 to April 1, 1882, at the rate of $25 per month; we to make, execute, and deliver to said Austin & Carys a warranty deed to said premises, conveying same free from all incumbrances immediately on the payment to us, by said Austin & Carys, of said sum of 3,400. "The title to said premises to be prefected or the money this day paid to be refunded; said Austin & Carys to pay as herein provided, or to forfeit the $100 this day paid." This contract was under seal. * * On the 26th of October defendant Henry Wacks notified Donaldson of his rescission of the contract, and offered to return the $100 received thereon and pay the expense of the abstract, which was refused. On the 29th of October, plaintiffs having duly executed a mortgage of the premises, tendered at the residence of the defendants to the defendant Marie Wacks the money and mortgage, and on the 31st renewed the tender thereof to defendant Henry Wacks, which was refused on the ground that the This case was tried by the court, and contract was rescinded through the previous from the facts found it appears that the default of plaintiffs. The plaintiffs have since plaintiffs, who were travelling salesmen, im- been ready and willing to perform the conmediately left the city of Minneapolis upon tract on their part. There had evidently their business, and remained absent until been a marked increase in the market value the 23d of October, leaving the matter of of the premises, and they were still raising in value. The court rendered judgment for named is made essential, either expressly by the plaintiffs upon certain terms and condi- the contract, or by implication from the tions therein provided. situation of the parties or the nature of the 1. It is contended that this contract case, suffering the day of payment to pass cannot be specifically enforced in equity does not ordinarily deprive a party of his for want of mutuality; that equity ought not equitable remedy. It is sometimes said that to interfere to enforce specific performance time is formal rather than essential. by defendants of a contract by which plaint- not, it is true, of the substance of the coniffs are not bound. It was however a valid tract, like the acts which the parties covenant contract in part executed. It rests upon a to preform. It may be material however, valuable consideration, and there is nothing though not essential, and these terms are in the case impeaching its fairness. If there is no other ground of objection, there does not appear to be any good reason why plaintiffs' rights under it should not be fully protected and enforced. 1 Story, Eq. (12th ed.), § 736 a; Ewing v. Gordon, 49 N. H. 455; Railroad Company v. Evans, 6 Gray, 32; W. R. Company v. Babcock, 6 Metc. 354; Soms of Temperance v. Brown, 9 Minn. 159. 162, (Gil. 144.) not convertible. Hubbel v. Van Schoening, 49 N. Y. 330, 331; Pom. Cont., § 373. It is always material as respects the good faith and diligence of the parties, and the equities of the case. Ewing v. Gordon, 49 N. H. 459; Tilly v. Thomas, L. R., 3 Ch. App. 67. The evident tendency of the more recent cases in this country is to hold parties applying for equtable relief of this nature to a more strict accountability for laches in the matter of punctual performance of theircontracts for the purchase of real estate. Barnard v. Lee, 97 Mass, 93; Hubbel v. Von Schoening, 49 N. Y. 331; Merchants' Bank v. Thompson, 55 id. 12. The clause in the agreement providing that plaintifls "were to pay as herein provided or forfeit $100 this day paid" does not operate to make the day fixed essential. Willard, Eq. Jun. 294; The court has the power to superintend the performance of the conditions of the contract on plaintiffs' part, and provide in its decree for the fulfillment thereof as a prerequisite to relief. Story, Eq., § 778b. The contract must be upon a valuable consideration, not voluntary, and must be fair and equitable in all its parts. It may then be enforced if plaintiff show himself otherwise within the rules applicable to the equitable remedy. The fact however that perform- Edgerton v. Peckham, 11 Paige, 352. It ance of the unfulfilled stipulations of the contract cannot be enforced by action against the plaintiffs is an important one to be considered in such cases on the question of diligence and good faith on their part. Pom. Contr, $411. 2. Time was not of the essence of this contract. It was not so by its terms. There is no stipulation therein declaring such to be the intention of the parties. The time fixed in the agreement clearly had reference to an early and punctual fulfillment of the contract, but it was not of the substance of it, so that suffering the day of payment to pass, operated in itself to bar plaintiffs' right to be heard in a court of equity. The sale was the principal object, and unless the time was not a plain stipulation that the contract was to be void and ended if not literally fulfilled. In this case time was not made essential by implication; that is to say, by the nature of the subject-matter, the object of contract, or the situation of the parties. Here it does not appear that the vendor needed or had engaged to use the money or security at any particular time, or for any special purpose. No change of residence was contemplated by him for months, nor were any bussiness changes or undertaking dependent on the prompt fulfillment of the contract, or the inducement for making it. No circumstances of this kind were in the minds of the parties in making the contract, or affect its construction. We agree there fore with the trial court that the time fixed evidence in this case clearly shows that the in this contract is not to be deemed essential agent, acting in plaintiffs' behalf, made and peremtory. reasonable exertions to comunicate with 3. It is material to consider whether the them, so as to be able to comply literally plaintiffs have lost their right to a specific with the terms of the contract on their part, performance in equity by reason of being and that he did not relax his diligence in the placed in default by defendant's tender of premises till their return, and that plaintiffs performance and rescission of the contract. then continued to manifest equal diligence. Where time is not in the first instance Their intention to insist upon the contract of the essence of the contract, it is now is clear, and their omission to provide their generally considered that it may be subse- agent with a power of artorney, or to return quently made so by notice assigning a reas- by the day, is not such negligence as under onable time for the completion of the agree- the circumstances should be held fatal to ment. The notice however to be effectual their application for relief. The situation of for the purpose, must not be such as to work a suprise upon the opposite party, but must give him a fair opportunity to protect himself and comply with it. Pom. Cont., § 396. For example, notice to an agent who has no opportunity before the time fixed to communicate with his principal so as to enable him to comply with the terms of his contract, would constitute no bar to the equitable rights of the principal, if due diligence were exercised by the agent. Plaintiffs' default entitled defendant to rescind, and is an absolute bar to relief in equity as well as at law, unless there are equitable circumstances in the case warranting such relief, and the right to equitable relief from such default must turn upon the reasonableness and circumstances presented, the rise in value of sufficiency of the circumstances alleged to the land will not deprive plaintiffs of their excuse it, regard being had to the conduct remedy. Pom. Cont. 408. and situation of the opposite party, Dyer v.! Hardgrove, 10 Ves. 505; Pom. Cont., §§ 411, 416. the defendant was not changed, so far as is shown, in the interval, so that it would have been any more detrimental to him to execute the contract on the 29th than on the 25th of October, particularly in view of the expressed determination of plaintiffs to adhere to it, and their willingness to make the cash payment immediately, and to consent to any arrangement then possible, including the deposit of the deed in escrow, to secure the deferred payment. Merchants Bank v. Thompson, 55 N. Y. 16. Whether defendant, as it has turned out, has made a loss by a premature sale is not material, and the question of damage traceable to such cause we need not consider. Under the In a strict legal sense, plaintiffs were in default in failling to execute the mortgage on the day, but their negligence was not gross or willful, and is such as the court may, on a proper showing, excuse under the circumstances, in view of their good faith and the promptness of their application. Davison v. Associates, 71 N. Y. 338. Within the limits of the general rules governing this class of cases, we are unable to see that the trial court erred in adjudging plaintiffs entitled to relief. "A party may not trifle with his contracts and still ask the aid of a court of equity. Neither will the law be administered in a spirit of technicallity so as to defeat the ends of justice." Hubbel v. Van Schoening, 49 N. Y. 331. Much must be left to the judgment and sound discretion of the judge who hears the case, and where his determination of the merits of the application is reasonably supported by the evidence, and is consistent It remains to consider a single exception. with the established principles which govern to the ruling of the court in recjecting the the equitable remedy, it will not ordinarily offer of defendants to prove by parol that be disturbed by the appellate court. The it was understood by the parties, when the James M. Lyddy, for plaintiff. Bergen & Dyckman and A. J. Vanderpoel for defendants. agreement was executed, that a failure by upon the day mentioned. The court displaintiffs to complete the agreement within | missed the complaint. the time named, should operate to release the defendants from thier obligations. The offer was properly rejected. It was not an offer to prove facts tending to show that MCADAM, J. While it is true that when time was impliedly, essential, and which were an individual sustains an injury by the misorally disclosed to the plaintiffs;, as for feasance or nonfeasance of a public officer, example, that the purchase should be comp- who acts or omits to act contrary to his leted at a particular day, to enable the duty, the law gives redress to the injured vendor to meet a promise or liability, or to party by an appropriate action (Adsit v. secure a bargain which he might otherwise Brady, 4 Hill, 630; Shepherd v. Lincoln, lose. It is elementary that parol evidence 17 Wend. 250; Smith v. Wright, 24 Barb. may be received for such purposes, and to 306; Robinson v. Chamberlain, 34 N. Y. show the relations of the parties and sur- 391; Hover v. Barkhoof, 44 id. 122; Connors rounding circumstances by the aid of which v. Adams, 13 Hun, 429), yet public officers the contract may be interpreted and under- are not liable for the misconduct or malstood, and the remedy intelligently and feasance of such persons as they are obliged equitably administered. This however does to employ, the maxim respondeat superior not qualify the general rule applicable as well in equity as in common-law jurisdiction, that where parties have deliberately reduced their engagements to writing in unambiguous terms, parol evidence is not admissible to cantradict or supplement the language used, so as to vary the plain meaning of the instrument, or to show what they meant or understod by it. City v. Thompson, 24 Minn. 208; McGuire v. Stevens, 42 Miss. 730; King v. Ruckman, 21 N. J. Eq. 599, reversing same case in 20 N. J. Eq. 316. The order denying a new trial should be affirmed. BROOKLYN BRIDGE TRUSTEES having no application to such officials. Murphy v. Commissioners, 28 N. Y. 134; Donovan v. McAlpin, 85 id. 185; 1 Dillon Mun. Cor. 298, note. In other words, public officers while liable to a civil action for willful and capricious omisson of duty resulting in injury to the party complaining, are not liable for mere neglect not personal. In the present case no personal neglect has been proven against any of the defendants. The negligence charged against the defendants consists: 1. In allowing the bridge under their 'management to be overcrowded on the day the accident occurred. The evidence proves that there were 87,000 people upon it on the day of the accident, and that 183,000 had crossed it in safty on a previous day, that the arrange NEW YORK CITY COURT, NOVEMBER 20, '83. ment were alike on both days. Hannon v. Agnew, The trustees of Brooklyn Bridge he'd not to be liable for injury to one crossing the bridge, caused by a panic among those travelling thereon, either on the ground of permitting the bridge to be overcrowded, or on that of not appointing an adequate police force to prevent such an accident. 2. In not appointing an adequate police force as required by the act under which the defendants were appointid. The superintendent, by and with the approval of the chairman of the committee on ACTION against the trustees of the Brook organization appointed by the board of lyn bridge for personal injuries to plaintiff trustees, selected and appointed what they while crossing the bridge on Decoration day, regarded as an adequate police force, which 1883. The accident took place during a proved sufficient on all occasions prior to panic among those travelling upon the bridge the one on which the plaintiff received her |