Page:Federal Reporter, 1st Series, Volume 8.djvu/871

MARTINDALB V. WAA.S. 857 �of an interest in the lease, and there never was anything more done than a willingness expressed by WaaB to give a deed. He never, at any interview, ofifered to assign the part interest in the lease as agreed upon. �3. The fact that the complainant was ready to pay for 18 acres, when only 17.82 acres was the measurement, does not change the contract. Ail that the complainant coiild elaim the deed should give him was 17.82 acres, and there is not sufScient proof of any change in the contract, except an extension of the time for payment. �4. The evidence is clear that complainant made a tender of the balance of the purchase priee on April lOth to Waas, and on the twenty-second to Mrs. Waas, and demanded a deed from them, waiv- ing all claim to the deed from the daughters. The tender to John Wass was sufficient. He negotiated the sale and was the agent of his •wife, as is established by the evidence. �5. There is no evidence that any damage is sustained by failure of the daughters to deed the right of way for streets, and none can be recovered. In fact, the complainant waived all his rights thereto. �6. While gross inadequacy of consideration .may justify a court of equity in refusing to enf orce the performance of a contract, there is not such inadequacy of consideration in this case. The value of the land is claimed by the defendants to have been $150 per acre at the time the contract of sale was made, and the price to be paid was $121.92. �7. There was no effective rescission of the contract by the defend- ants and no right to rescind. �8. The complainant, by his purchase at the foreclosure sale, is enti- tled to have the amount paid by him offset pro tanta in liquidation of the balance due the defendants under the contract. A reference is ordered to H. E. Mann to ascertain the balance due defendants after the complainant is credited with this amount, and the costs of this suit, which shall also be ascertained by said master ; and upon the coming in and confirmation of said master's report a decree -will be entered directing and requiring the defendants to execute a deed to complainant for the 17.82 acres described by metes and bounds as- platted, and also an assignment of the lease, as required by said written contract, on payment of the balance found due by the master ; and it shall provide that if the defendants do not, immediately after the balance is ascertained as aforesaid, make and tender such con- veyance, the decree shall stand for a deed, when signed and entered, upon payment into the registry of this court of the balance so found due the defendants. ��� �