Wakeham

This is an action for the specific performance of a contract for the sale of real estate. Plaintiff also prays for damages for non-performance; and in case specific performance cannot be had, then for judgment for compensation for the payments already made, with damages for non-performance.

The complaint shows that the plaintiff and defendant entered into an agreement in writing for the sale' by defendant to plaintiff, who also bound himself to buy, a certain tract of land in consideration of fifty dollars paid down, and the further sum of seven hundred dollars, to be thereafter paid in money, in monthly installments of twenty dollars each, with interest on all unpaid balances,payable monthly, at the rate of nine per cent per annum. If the contract had stopped there, there would have been no difficulty in plaintiff, if not himself in default, enforcing specific performance against the defendant. But unfortunately for the enforcement of that remedy, afterward, and on the same day, the parties entered into a supplemental agreement in writing, whereby they modified and entirely changed the original agreement as to the mode, manner, and time of payment. By this second agreement the…