Page:The Green Bag (1889–1914), Volume 16.pdf/910

 Rh he effectual, where the rescission is to be effected only by the necessary implication contained in the agreement to substitute a new contract differing in some of its terms from the old one, there can be no rescission if the agreement for substitution is invalid. Even if one party offers to perform his promise under the new agreement, the other party may, according to the better view, still insist on the original contract, and re fuse to accept the substituted performance to which he had orally agreed. In an early case, however, the Supreme Court of Massachusetts adopted a distinction that was suggested by Lord Ellenborough in Cuff v. Penn, between the contract and its performance. "The statute," Wilde, J., says, "requires a memorandum of the bargain to be in writing, that it may be made certain; but it does not undertake to regulate its performance.'' The court then proceeds to argue that as a substituted performance would operate as a satisfaction of the origi nal contract, and tender is equivalent to per formance, the plaintiff could sue on the original contract and prove in support of it an offer to perform with the alterations later agreed upon. But the prevailing view is that even in the case of a binding contract of accord, tender is not equivalent to per formance, and there is no satisfaction even if the tender is wrongfully refused. How ever this.may be, a tender where there is no obligation to accept it cannot possibly have the effect of performance. The learned author of the leading text book on the subject [Browne on the Statute of Frauds] gives his approval to the decision, but the current of authority seems strongly against it. PROFESSOR С. С. Langdell contributes to the Harvard Late1 Review for November, а scholarly article on "Equitable Conversion,'' from which the following extract is taken: There is one notable exception to the rule that when land is exchanged for money the money belongs to the person who owned the land when the exchange was made; for, Avhen an ordinary bilateral contract is made for the sale and purchase of land, and, pend

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ing the contract, the vendor dies, and then the contract is performed, the land will have to be conveyed to the purchaser by the ven dor's heir or devisee to whom it will have devolved on the vendor's death, and yet the money will have to be paid to the vendor's executor. Why is this? Primarily, it is be cause the land of a deceased person devolves upon his heir or devisee, while his -personal estate, including his choses in action, devolves upon his executor. Consequently, when a vendor dies, pending a contract for the sale of his land, the land will devolve on his heir or devisee, and he alone, therefore, can cenvey it to the purchaser, while the contract, in respect to the right which it confers upon the vendor as well as the obligation which it imposes upon him, devolves upon his exe cutor, and, therefore, he alone is entitled to receive the money from the purchaser. Yet, if the executor attempt to enforce the con tract at law, he will encounter an insuper able obstacle, for he cannot show a breach of the contract by the purchaser without showing, on his own part, ability, willing ness, and an offer to convey the land on receiving the money, and that, of course, he cannot show. His only remedy, therefore, is a bill in equity for specific performance, and equity permits him to file such a bill against the purchaser, making the vendor's heir or devisee a co-defendant, and a decree is made against each defendant, namely, that the purchaser pay the money to the plaintiff on receiving a conveyance of the land, and that the heir or devisee convey the land to the purchaser on his paying the money to the plaintiff; and, though the plaintiff does not accomplish this result. on the strength of his legal right alone, yet the only principle of equity which he has to in voke is the principle that the vendor's heir or devisee, not being a purchaser for value of the land, stands in the shoes of the ven dor, and so must perform his contract to convey the land. The foregoing exception has, however, been unwarrantably extended to a class of cases to which it is not at all applicable, namely, to cases in which an owner of land gives to another person an option of pur