The opinion of the court was delivered by
— This case came up on the writ, statement,’ pleas,' charge of the court, and verdict and judgment; and errors were assigned to the charge of the court, and to the verdict and judgment. •The evidence, which was principally parol, was not part of the record. There are few cases in which an abstract principle of law is disputed. The contest is, generally, .whether the facts gnd ’ circumstances of the case bring it within the principle; or, when the first general view of the facts would seem to bring it within the effect of a settled principle, whether there is not some fact or circumstance, which will make it an exception. Hence, generally, the charge of the court is, by the judge given, and by the jury, understood, as *54applicable to the case trying; but, when, the charge is brought under revision, and the superior court has not before it the facts to which .it was applied, it is often difficult to decide whether there was error in the law, ,a.s stated to the jury, or not And, perhaps, the safe rule to be adopted; and the one most consonant to the principles of -our system, is, tocon'sider the charge as correct, if there is. any colour for supposing it to have been applied to a case in which it would be agreeable to law. In some districts, judges have refused to put their charge on the record, until the evidence to which it is applied is made out by the party objecting, and submitted to the counsel of the adverse party, and agreed to be correct; and, if the counsel do • not agree, the testimony is settled as correct, by the- judge. But, as this gives some trouble to counsel, it is often, -and in some disr tricts almost always, omitted. We are, then, to take the facts as stated in the charge;, but, this does not generally purport to give even a full abstract of ¿11 the evidence; and then we have, what oc-" curred in this case,.the statements of counsel — not always agreeing, in every respect, with each other, or with what little part of the evidence is referredto in the change.
As far as I could ascertain, this cause presented something like the following case: S. Hower and William Scott were brothers-in-law of the defendant below, G. Miller. For some cause, he, Miller, had given several notes, which being the property of Hower and Scott, were divided between them. Hower brought suit, and' obtained judgment, for a part of his notes, about 1831 or 1833. The defendant alleged, and proved, that he and Scott agreed, that he, Milter, was to convey to Scott a certain quantity of land, which Scott agreed'to accept,' in discharge of his notes on Miller. That, after this, Scott refused to comply' with, the bargain, -unless Miller would give an additional quantity of land, and Miller agreed to do so. .So far, the judge says, was admitted to be'the case, by both parties. Whether Scott at this'time took possession, and retained it, did not appear; the charge says nothing as to this fact; and the counsel positively differ. At this time, in 1831, Hower had a judgment, Which bound Miller’s land; and, to enable Miller to make the deed to Scott, Miller gave Hower a mortgage on other lands, to secure the amount of his judgment; but satisfaction was not entered on the judgment, and'the parties, ignorantly supposing it was extinguished by the mortgage, immediately on giving the mortgage to Hower, Miller made and tendered a deed to Scott, for the land sold and surveyed off to him. This he refused.to accept; and, at the trial, alleged ¿Tower’s judgment as an incumbrance.. It is said, we know not whether correctly, Or not, that at the timé he objected for a very different reason, and that, if this- objection had been made, Hower would have at once entered satisfaction, or released; but no evidence is before us on this point. - *
After this, as Scott’s notes fell due, he sued one, and got a judg- ment by default against Miller. A second became due;-he sued it,. *55and Miller confessed judgment on it. ' Scott levied an execution on one of these judgments on the land set out for him by Miller, a deed for which he had refused, and bought it for a sum less than the amount of one of the notes. The present suit was on another of Miller’s notes, which had been allotted to Scott; and the defence attempted was, the contract to take land for the whole four notes; and that it had been measured off for him, possession taken, and a deed tendered. Scott then gave in evidence Mower’s judgment, as an incumbrance, which justified him in refusing the deed; and alleged, the whole' contract was rescinded, by the consent of both parties; and, as evidence of it, showed the judgment by default, and the judgment confessed by Miller, on another note; and, to be sure, this was very strong evidence that Miller considered the contract about the land at an end; — for why confess judgment on a note which was paid, if the present defence is true ? Miller then showed a release of Mower’s judgment, executed in 1824; and reciting that-the judgment was satisfied in 1821, &c. The judge left the question, whether the bargain was rescinded, to the jury.
Although a contract about the sale of land is fully agreed to in all its details, and a time and place appointed to draw the conveyance, yet one of the parties may change his mind, and for no other reason refuse to execute the conveyance, or to accept it, and pay for the land. And, if this were not so, the statute of frauds, so far as it relates to lands, would be idle,-or perhaps absurd. But, although this is true, as an abstract proposition, it is not universally true, under all circumstances; for, if the vendee take and keep the possession; if,- in consequence of the contract, the vendor go to trouble and expense, to' enable him to complete his title; if he sells, to enable himself to pay his debts, and the vendee gets his property into his possession, and disables him from selling to others; in short, if he makes frivolous excuses for not complying, until he gets the vendbr entangled in difficulties, for the dishonest purpose of getting the same land at an undervalue, the law may be otherwise, and he may be held bound by a parol contract; which has been partly carried into effect by the other party, by delivering possession, &c. and which the vendee evaded, for an improper purpose, though he still retained the possession.' I do not say that there is evidence of such conduct, by Scott, in this .case; we only know, in this, court, a part of these transactions. On the facts stated, in the charge of the court, there is no error in the charge; it is, however, apparent, that the question, whether possession was given -to Scott, and retained by him, is a most material one; but it is not a ground for reversing, except in a very singular case, that the judge did not advert to every point in the cause, unless- counsel have requested an opinion on the point omitted.
But there is anotherqjoint, on which this cause must be remanded, The action was debt, on a single bill. The jury found a verdict for the plaintiff — no sum in favour of the plaintiff is found. It is use*56less to talk about judgment for default of plea, or by nil dicit, &c. There, a writ of inquiry will ascertain the sum, or it may be done by the officer of the court; but who ever heard of a writ of inquiry' of damages, or the sum being ordered to. be ascertained by a prothonotary, after a jury sworn at the bar, trying the cause, and giving a general verdict? - It may appear, at first view, a formal or technical pbjection; but, if tolerated, .it would render nugatory an important clause of our act about defalcation; which expressly says, that if any part be paid, it shall be defalked, and the plaintiff shall have, judgment for the residue only. It would change our whole system, and render a jury useléss, in more than half the suits in court. It is admitted, such á-verdict would not have been received, if it had not béen given at a time when the President was absent.
Judgment reversed, and a venire facias de novo awarded.