the tract of ten thousand acres do not answer | below. Cases from Florida are not exceptions to the description contained in the pretended to the principles which govern other appeals grant, and so cannot be the origin of title. brought here. The Attorney-General said, that, as the representative of the United States, it was his duty, in all the cases of land claims sent up from Florida, to examine them with a judicial eye. The act of Congress requires that all the cases of this description brought before the courts of Florida, in which the decision shall be against the United States, should be brought by appeal to this court. If the law officer of the government see anything in the case, it is his duty to present it to the court for its decision; and, in doing this, he is not restrained by anything which may have been done or omitted by the District Attorney of the United States, before the courts of Florida. The whole subject is open; and under this view the whole of the 165*] matters before the court below *may be fully examined, and exceptions taken here, which had been omitted upon the first hearing of the case. But the testimony of Clarke was legal. The statement made by the commissioner is no part of his evidence; and if it is, it does not show that he was interested at the time of his examination. He had been interested, but that interest might have ceased. He does not assert a present interest. Mr. Justice Catron delivered the opinion of the court: This was a mill grant of five miles square of land, or sixteen thousand acres; that is, at Doctor's Branch, where the mill was intended to be erected, six thousand acres; and ten thousand acres "on the northwest side of the head or lagoon of Indian River." The concession was made (6th of April, 1816) on the condition that the mill was built. The mill was erected. The first survey was made at Doctor's Branch, in 1819, and is free from objection. That this grant is null and void, has been The second, for ten thousand acres, was already decided on the principles settled by this made February, 1820, by the Surveyor-General court in the case of The United States v. Sib- of East Florida, "northwestwardly of the head bald, 10 Peters, 313, and in other cases. This was of Indian River, and west of the prairies of the a grant on a precedent condition, the establish- stream called North Creek; which empties itment of a mill. The condition was not per- self at the head or pond of said river." Such formed. The evidence is insufficient to estab-is the description in the certificate of the Surlish the improvement. The description of the veyor-General. The survey had been objected land in the grant is too vague and indefinite. to, but the objection was withdrawn at the The evidence of Clark should have been reject- hearing below; and it is insisted that a waiver ed by the court; and this court will exercise the of its legality must be inferred. The objection power to strike it out, although it was allowed extended to the competency of the paper as to be read by the District Attorney of the evidence, and not to its effect when heard; so United States. The memorandum made by the the court held in Breward's case, at this term. commissioner, after taking the examination, shows his interest in the case. He had purchased a part of the very grant his testimony was to sustain. As to the regulations of Spain relative co grants of lands by the governors of their territories, and which this court had declared to be in force, the Attorney-General cited 2 White's New Recopilation, 278. Mr. Berrien and Mr. Wilde, for the appellees: No question can be presented to the court, on this record, which has not already been decided in the many Florida cases which have been frequently examined and decided by it. The grants were sufficiently descriptive. The lands were found by the Surveyor-General, under the Spanish government; and surveys and plats were made of them. Whether the survey of the ten thousand acres was near to or distant from the six thousand acre tract, is of no consequence. The power of the Spanish governor to make the grant where he though proper was complete. The construction of Spanish grants is not determined by the principles of the common law, but by the laws and ordinances of Spain, by treaties, and by the orders of the king. This has often been so held by this court. Cited, Delespine's case, 15 Peters, 341. The evidence to establish the performance of the condition, is sufficient without the testimony of Clarke. But still Clarke's evidence is insisted upon. A party is not to be taken by surprise by a new exception in this court, and 166*] to be called upon to support the legality of evidence which was allowed by the court The official return of the Surveyor-General has accorded to it the force of a deposition. So we held in the cases of Breward and Hanson; to which we refer. The land could only be surveyed at the place granted; if elsewhere, it would have been a new appropriation, when the survey bears date in 1819, contrary to the eighth article of the treaty with Spain; and the question is, was it at the proper place? It was granted "on the northwest side of the head of Indian River, or lagoon." *According to the strict ideas of con- [*167 forming a survey to a location, in the United States, the survey would be located adjoining the natural object called for, there being no other to aid and control the general call; and therefore the head of the lagoon would necessarily have formed one boundary. But it is obvious more latitude was allowed in the province of Florida. The object of the grant was timbered land, fit for the supply of lumber; and if the nearest vacant timbered land to the head of the lagoon was surveyed, the intentions of the government and of the grantee were complied with. This was the construction given by the Surveyor-General to the words "northwest side." He permitted the general call to vary so far, and no further, as to secure timbered land, excluding the prairies next the head of the lagoon. The legality of the survey depends on the fact. The description given in the certificate above recited, and that set forth by the decree, must be taken together; the lines and boundaries on other lands are given in the decree. The complaint is, that the land was surveyed too far west. On the north, it is bounded by the lands of Charles Sibbald; on the south, by those of John M'Intosh; on the west, by royal, or vacant lands; and on the east, by the prairies of North Creek, which empties itself at the head of Indian Lagoon. There is no evidence that North Creek is navigable. If there was such evidence, as the survey includes the creek, we would reverse the decree, and order the survey only to front one third part on the creek. The Surveyor-General certifies that this ten thousand acres is the tract of land granted to the petitioner, on the 6th of April, 1816; and, although no reliance would be placed on the assertion in the certificate, standing alone, still, taking the return that the survey was on the land granted, in connection with all the facts and circumstances appearing in the record, and it tends to confirm the conclusion that the land was laid off on the next land to the head of the lagoon, covered with timber. One other consideration has weight. If it be untrue that the survey is at the proper place, the United States could have proved the fact to a certainty, with the slightest diligence, and ought to have proved it. This consideration is strengthened by the pleadings and evidence. The petition filed in 1829, alleges that the surveys were made for lands granted; and sets out the descriptions, courses, 168] and distances, to which the attorney of the United States made no answer; the fact was not admitted for this reason, and necessary to be proved by the complainant (6 Cranch, 51), yet it shows that the claim was not resisted on this ground; and such was clearly the case throughout, as George F. Clarke, the SurveyorGeneral, was twice examined as a witness, on many interrogatories, without having been requested to state the locality of the ten thousand acres survey. Upon all these facts and circumstances, taken together, we order the decree to be affirmed. thousand five hundred and sixty-eight dollars and seventy-four cents, which, from inability, they did not pay; and the same were returned to New Or leans, and were there paid, with damages and inter est, by H. & G., at great loss and inconvenience. The notes deposited with L. amounted to upwards of seven thousand dollars beyond the draft for two thousand dollars, and the notes for one thousand five hundred and sixty-eight dollars and seventythe Louisiana practice, praying for a decree by four cents. B. & Co. filed a petition according to which the indorsed notes in the hands of L. should be delivered to them, equal to the balance due to of B. & Co., in conformity with the petition. Held, them. The district judge gave a decree in favor that the decree was erroneous; and the court reversed the same, and ordered the case to be remanded, and the petition to be dismissed with costs, by the Circuit Court of Louisiana. The Supreme Court has no authority, as an appellate court, upon a writ of error, to revise the evidence in the court below, in order to ascertain whether the judge rightly interpreted the evidence, or drew right conclusions from it. That is the proper province of the jury; or of the judge himself, if the trial by jury is waived, and it is submitThe court can only re-examine the law, so far as he has pronounced it, ted to his personal decision. upon a state of facts; and not merely upon the evidence of facts found in the record in the making of a special verdict, or an agreed case. If either party in the court below is dissatisfied with the rul ing of the judge in a matter of law, that ruling should be brought before the Supreme Court, by an appropriate exception, in the nature of a bill of exceptions; and should not be mixed up with the supposed conclusions in matters of fact. what the French law, the basis of that of Louis!The contract between B. & Co. and H. & G. was, ana. calls a commutative contract, involving mutual and reciprocal obligations; where the acts to be done on one side form the consideration for those to be done on the other. Upon principles of general justice, if the acts are to be done at the same time, neither party to such a contract could claim a fulfillment thereof; unless he had first performed, or was ready to perform. all the acts required on his own part. When the entire fulfillment of the contract is contract, under the laws of Louisiana, is treated as indivisible; and neither party can com- [*170 pel the other to a specific performance, unless he complies with it in toto. contemplated as the basis of the arrangement, the States for East Louisiana. N error to the District Court of the United Booraem & Company, merchants of New York, agreed with Hyde & Gleises, merchants of New Orleans, who were indebted to them, to give them an extension of time for the pay. ment of the amount due by them, if they would 169*] *HYDE & GLEISES and H. Locket, give their notes, payable at subsequent periods, Plaintiffs in Error, V. BOORAEM & CO., Defendants in Error. for a certain sum, the notes to be indorsed, and deposited with H. Locket, and to be delivered to them on their having paid certain engagements, due in New York, and the amount of which was included in the amount of the notes Commutative contract-partial failure of one deposited in the hands of H. Locket. The party to perform-indivisible contract-con-notes were given and deposited in pursuance ditional novation. Louisiana. The defendants in error, merchants in New York, agreed with the plaintiffs in error. H. & G., merchants in New Orleans, that indorsed notes should be given by H. & G. for a certain sum, being the amount due by H. & G. to B. & Co.. and other notes or drafts of H. & G., payable in New York, which indorsed notes were to be deposited in the hands of L., to be delivered to B. & Co., on their performing their agreement with H. & G.; part of which was to take up certain drafts and notes given by H. & G., and payable in New York. The notes, indorsed according to the agreement, formed all their contract, excepting the payment of were drawn and delivered to L. B. & Co. per a draft for two thousand dollars, and a note for one NOTE. That to compel specific performance, plaintiff must show readiness to perform, see notes to 8 L. ed. U. 8. 627; 4 L. ed. U. S. 254. of this agreement; and Booraem & Company performed all the matters contained in the agreement, excepting that they did not pay a draft for two thousand dollars, and a note for one thousand seven hundred and sixty-eight dollars and seventy-four cents, due and payable in New York, being unable to pay the same. The draft and note were returned to New Orleans, and Hyde & Gleises, at great inconvenience and loss, paid for the same. Booraem & Company, proceeding according to the practice in Louisiana, filed a petition in the District Court, then exercising the powers of a circuit court of the United States, asking that the notes of Hyde & Gleises, in the hands of H. Locket, taking from the same a sufficient amount to repay to them, Hyde and Gleises, the | whose interests are affected by this judgment. It amount of the two thousand dollars draft, and the note for one thousand five hundred and sixtyeight dollars and seventy-four cents should, by a decree of the court, be ordered to be delivered to them. is not sufficient that they may defend themselves when sued on the paper. The court should not expose them to the jeopardy of a suit, by decreeing a delivery of their paper to Booraem & Company, unless it is found, in the terms of After a full hearing of the case, on the peti- the contract, that the conditions and contintion, the answer, and the testimony, the Dis-gencies have happened on which it should be so trict Court gave a decree in favor of the peti- delivered. If the decree is to affect their intertioners; and the defendants prosecuted this ests at all, as it manifestly does, will not the writ of error. court look to see what these interests and their agreements are? It is perceived, then, that these persons are the sureties of Hyde & Gleises, on the terms of their contract. And if Hyde & Gleises had consented to change the contract without consent of the sureties, they would not have been bound, even though beneficial to their interests. There is no equity against a surety; but such have a right to stand on the exact terms of their contract. 9 Wheat. 680; 12 Wheat. 511; Paine's C. C. R. 305; 3 Wash. C. C. R. 70. The case is fully stated in the opinion of the court. Mr. Key and Mr. Henderson argued the cause for the plaintiffs in error, and Mr. Coxe appeared and argued the cause for the defendants. 171] Mr. Key and Mr. Henderson contended that the record shows, beyond cavil, that the special contract sued on was executory, and dependent in its terms of execution on both sides. Booraem & Company agreed to cancel and extinguish certain liabilities and evidences of debt then due them by Hyde & Gleises, and to take up and extinguish others to become due, and part of which Booraem & Company had passed from their hands. On this consideration, Hyde & Gleises undertook to furnish Booraem & Company with new evidences of debt, payable at a more remote day than that to which any of the former liabilities extended, and to give approved indorsers on most of the new paper. Now, the obvious understanding of the parties to this agreement was, that so soon as the first set of securities was taken up and delivered to Hyde & Gleises, that the second set of securities, prepared and placed in the hands of a mutual depositary, should then be delivered over. So understood Mr. Locket, the depositary. So did Booraem & Company, as shown by their subsequent letter, of date 26th May, 1837; and so it is averred by Hyde & Gleises. This is just; and courts favor the principal of dependent contracts because most just. 1 Peters, 465. Mr. Coxe, for the defendants in error, cited 4 Louisiana Rep. 465; 3 Louisiana Rep. 1; Code of Practice in Louisiana, 517, 487, 488, 489; 7 Martin's Rep. 21; 1 New Series, 187; 4 New Series, 21; 8 New Series, 379; 1 Peters, 620; Louisiana Code, article 602, 2042; 3 New Series, Louisiana Rep. 606, 607. Mr. Justice Story delivered the opinion of the court: This is the case of a writ of error to the Circuit Court of the Eastern District of Louisiana. The original suit was brought conformably to the Louisiana practice by petition, in which Booraem & Company the original petitioners, state, that two of the original defendants, Hyde & Gleises, merchants of New Orleans, being indebted to the petitioners in a considerable sum, did, in April, 1837, deliver to the petitioners certain promissory notes, to wit, three notes drawn by Hyde & Gleises to the order of, and indorsed by, T. R. Hyde & Brothers, dated the 6th of April, It will be observed, also, that this suit is not 1837, at six, twelve, and eighteen months, to recover money due by contract. Nor is it amounting to five thousand dollars; and three to recover damages for breach of contract. notes drawn by the same drawers to the order Nor is it an action of detinue and trover. But of, and indorsed by William T. Hepp, dated on it is an attempt to have decreed a partial, specific the sixth of April, 1837, at seven, eleven, and performance of a contract, for delivery of chat- fifteen months, amounting to five *thou- [*173 tels of choses in action. Now, the rule is uni-sand dollars; and three notes drawn by the same versal, that he who asks a specific performance, drawers, to the order of Booraem & Company, must himself have performed, or be in a condi- dated the 6th of April, 1837, at nine, thirteen, tion to perform, his part. 1 Wheat. R. 178; 2 and seventeen months, amounting to two thouWheat. 290. sand seven hundred and fifty dollars and sixty. But this record admits the agreement, and four cents. The petitioners then state that on acknowledges the default of the plaintiff; and receipt of the notes, they, the petitioners, agreed thereupon the court proceeds to reform and re-to extinguish any and all demands which they model the contract, to correspond with the had against Hyde & Gleises, or for which the delinquency of the plaintiff. This the defend-petitioners had become responsible by account, ant, insisting on the terms of his agreement, note, or acceptance, previous to the 6th of April, objects to. 1837, and which, including interest and ex The court below has made in its direction a change, amounted to eleven thousand seven new contract, different from what the plaintiff hundred and ninety-eight dollars and sixty-four set forth; adverse to the proof in the case, and to cents. The petitioners then aver that they did the will of the defendants. This is equally un-pay and extinguish the said demands, with the authorized by legislative or judicial power. 2 exception of a draft for two thousand dollars, Sumner's C. C. R. 278; 1 Peters, 14; 4 Wheat. 316; 8 Wheat. 1. and a note for one thousand five hundred and sixty-eight dollars and seventy-four cents, which We submit, too, that, though T. R. Hyde & they were unable to provide the means of taking 172] Brothers, and W. *T. Hepp, the indors- up, and which have since been taken up by ers, are not parties to the action, yet they must Hyde & Gleises. The petition then goes on to be noticed as parties to the contract, and parties' state that these notes were left in the hands of H. Locket, Esq., the other defendant, at New | failure of the petitioners to comply with the Orleans, who had been notified not to dispose agreement, and the payments they were forced of them to the prejudice of the rights of the to make, they exhausted their resources and petitioners; that they had demanded, the deliv- credit, and their business was destroyed, and ery of five of the notes, to wit, three indorsed by their ability to protect their indorsers was utHepp (the others drawn to the order of, and in- terly at an end; and they conclude by denying dorsed by Hyde & Brothers, being omitted in their indebtment in the manner stated in the this part of the petition by mistake), and a petition, and pray that the petitioners may be balance in cash of four hundred and sixty-nine cited to answer in reconvention, and be condollars and twelve cents, according to the ac- demned to pay the amount of five thousand count annexed; that they had also demanded a dollars to the defendants as damages. delivery of the same five notes from Locket; but he had refused to deliver the same. The peti-swer, asserted that the notes were deposited in tioners therefore prayed that they might have a judgment of the court decreeing a delivery to them by Locket of the three notes drawn by Hyde & Gleises to the order of T. R. Hyde & Brothers, and two of the three notes drawn to the order of William T. Hepp, one at eleven months for fifteen hundred dollars, and the other for two thousand dollars at fifteen months; and decreeing Hyde & Gleises to pay the said balance of four hundred and sixty-nine dollars and twelve cents; and they also prayed for further relief. *The defendant, Locket, by his an- [*175 his hands by the joint consent of the petitioners and Hyde & Gleises, to be delivered to the petitioners by him when all the conditions in the receipt were fulfilled by the petitioners; and he avers that the agreement never was fulfilled on the part of the petitioners, and that they are not entitled to the notes. The indorsers also filed a petition of intervention in the cause; which, however, was afterwards withdrawn. The petitioners replied to the plea of reconvention, denying their indebtment. Such is the substance of the petition, which Upon this state of the pleadings, the cause does not seem to be drawn with entire accuracy came before the Circuit Court for decision, and precision. Annexed to the petition is a re- without the intervention of a jury, by the conceipt, signed by Booraem & Company, acknowl-sent of the parties, and the final decision was edging the receipt of the nine notes described in 174*] the petition, and *that they are given for the purpose of extinguishing the demands against Hyde & Gleises, before the sixth of April, 1837, as stated in the petition; and then adding the following clause: "Should Joshua B. Hyde, of the firm of Hyde & Gleises, now in New York, have settled for the draft of two thousand dollars, paid by Booraem & Company, on the 15th of March, 1837, or for the sum of two thousand one hundred and twenty-eight dollars and thirty-six cents, by notes or other wise, the said Booraem & Company are bound to take them up at maturity, and are included in said arrangement herein first specified.” made by the district judge, upon an examination of the evidence offered by the parties. The decree was, in effect, that the defendants ought to pay to the petitioners out of the notes the balance of eleven thousand seven hundred and eighty-nine dollars and sixty-four cents, after deducting the amount of the note of one thousand five hundred and sixty-seven dollars and seventy-four cents, and of the acceptance of two thousand dollars paid by the defendants, and the interest thereon; and that for this purpose four of the notes in the possession of Locket, to wit: two drawn by Hyde & Gleises to the order of T. R. Hyde & Brothers, of the 6th of April, 1837, one for two thousand dollars Hyde & Gleises, in their answer, admit the payable in eighteen months, and the other for drawing and indorsing of the notes, and aver one thousand five hundred dollars, payable in that they were prepared for delivery to the twelve months; and two other notes drawn by petitioners according to the receipt, which con- Hyde & Gleises to the order of W. T. Hepp, tains stipulations binding upon the petitioners, dated 6th of April, 1837, one for two thousand and forming conditions precedent to the deliv-dollars, payable in eighteen months, and the ery of the notes; that to secure a compliance with the agreement, it was mutually agreed that the notes and receipts should be deposited in the hands of Locket, to be delivered to the petitioners when the several conditions mentioned in the receipt were performed, and only in that event were to be delivered; that the petitioners totally neglected and refused to perform the conditions; and in consequence of such omission and neglect the defendants, Hyde & Gleises, were forced to pay and did pay a note of one thousand five hundred and sixtyfour dollars and seventy-four cents, and an acceptance of two thousand dollars, with costs and damages, both of which the petitioners had assumed to pay, that the friends of the defendants, Hyde & Gleises, were induced to indorse the notes by the reasonable expectation that the defendants would be enabled to meet the notes from the profits of their business, and save their indorsers from loss, if the extensions stipulated in the receipt were granted upon all the demands of the petitioners: that by reason of the other for one thousand five hundred dollars, payable in eleven months, amounting in all to seven thousand dollars, to be delivered by Locket to the petitioners or their attorney; and that the remaining five notes be delivered to Hyde & Gleises; and that judgment be for the petitioners against Hyde & Gleises for the remaining unsatisfied sum due to the petitioners, of seven hundred and seventy-six dollars and ninety cents, with interest from the decree. It is from this judgment that the present writ of error is brought; the district judge having, at the request of the defendants' counsel, made a statement of the facts on which he relied; and the record containing, at large, the [*176 whole evidence at the hearing. One of the embarrassments attendant upon the examination of this cause, in this court, is from the manner in which the proceedings were had in the court below. We have no authority, as an appellate court, upon a writ of error, to revise the evidence in the court below, in order to ascertain whether the judge rightly inter of the contract. But it is nowhere provided that the party who has omitted to perform the acts which he has contracted to perform, can entitle himself, if the other party has been in no default, either to a specific performance, or to damages, or to a dissolution of the contract. That would be to enable the party committing the default to avail himself of his own wrong, to get rid of the contract. preted the evidence or drew right conclusions | gation to do or not to do, the other party in from it. That is the proper province of the whose favor the obligation is contracted is en. jury, or of the judge himself, if the trial by titled either to damages, or, in cases which perjury is waived, and it is submitted to his permit it, to a specific performance of the contract, sonal decision. We can only re-examine the at his option; or he may require the dissolution law, so far as he has pronounced it upon a statement of facts, and not merely a statement of the evidence of facts, found in the record in the nature of a special verdict, or an agreed case. If either party in the court below is dissatisfied with the ruling of the judge in a matter of law, that ruling should be brought before this court by an appropriate exception, in the nature of a bill of exceptions, and should not be mixed up with his supposed conclusions in matters of fact. Unless this is done, it will be found extremely difficult for this court to maintain any appellate jurisdiction in mixed cases of the nature of the present. The same embarrassment occurred in the case of Parsons v. Armor et al. 3 Peters, 413, and was there rather avoided by the pressure of the circumstances, than overcome by the decision of the court. Taking this case, then, as that was taken, to be one where there is no conflict of evidence, and all the facts are admitted to stand on the record, without any controversy as to their force and bearing in the nature of a statement of facts, and looking to the allegations and prayer of the petition, and the facts stated by the judge, the question, which we are to dispose of, is whether, in point of law, upon these facts, the judg ment can be maintained. We are of opinion that it cannot be, and shall now proceed to as-is nothing unreasonable in this doctrine; and sign our reasons. But it is supposed that where a party has performed his contract only in part, he may, nevertheless, be entitled to a performance, pro tanto, from the other side; although it has been by his own default, that there has not been an entire performance. And certain cases in the Louisiana Reports have been relied on to establish this doctrine. But these cases, when examined, will not be found to justify any such broad and general conclusion. They established no more than this: that where, in a commutative contract, there has been a part performance on one side, from which a bene- [*178 fit has been derived by the other side, the other party is compellable to make compensation in pecuniary damages to the extent of the benefit which he has received, deducting therefrom all the damages which he has sustained by the want of an entire performance thereof. There although it may not be in many cases recognized and acted upon in the common law, it is often enforced in equity. But this doctrine is not applicable to all cases of commutative contracts, generally, but only to cases where the contract is susceptible, from its nature and ob performance, but a mere pecuniary claim in the nature of a quantum meruit is sought to be enforced. Thus, in the case of Loreau v. Declouet, 3 La. R. 1, where A agreed to build a sugar-house for B, for a certain price, and B was to pay for it when the work was completed, and to furnish materials; it was held that if A failed to complete the work in the manner stipulated, yet, if B used the sugar-house, he was bound to pay for it in money, the value of the labor he had expended upon it; that is to say, the value of the benefit he had derived from the labor; for the Civil Code of Louisiana (art. 2740) contemplates that B, in such a case, is entitled to damages for the losses sustained by him from the want of a due fulfillment of the contract. The same decision was made under similar circumstances in the case of Etir v. Sparks, 4 La. R. 463. In the first place, it is a material circumstance, that the petition is not to recover pecuniary compensation or damages for any sup posed benefit conferred upon Hyde & Gleises under the agreement; but it is in the nature of the bill for a specific performance of that agree-jects, of divisibility; and where, not a specifie ment by a delivery up of a part of the notes deposited in the hands of Locket, not upon the ground of an entire performance of the agree177*] ment on the part of the petitioners, but confessedly upon the admission that they have not performed it, except in part; and therefore seeking a part performance only, pro tanto, from the other side. Now, the present being what in the French law, which constitutes the basis of that of Louisiana (Code of Louisiana, art. 1760 to art. 1763), is called a commutative contract, involving mutual and reciprocal obligations, where the acts to be done on one side form the consideration for those to be done on the other, it would seem to follow, upon principles of general justice, that if they are to be done at the same time, neither party could claim a fulfillment thereof, unless he had first performed, or was ready to perform, all the acts required on his own part. And this, accordingly, will be found to be the rule of the Civil Code of Louisiana (art. 1907), where it is declared that in commutative contracts, where the reciprocal obligations are to be performed at the same time, or the one immediately after the other, the party who wishes to put the other in default, must, at the time and place expressed in or implied in the agreement, offer, or perform, as the contract requires, that which on his part was to be performed, or the opposite party will not be legally put in default. And again (art. 1920 and art. 2041), on the breach of any obli But, where the entire fulfillment of the contract is contemplated by the parties as the basis of the arrangement, the contract is treated as indivisible; and neither party can compel the other to a specific performance, unless he complies with it in toto. Thus, if A should agree to sell B a ship for ten thousand dollars, or a horse for five hundred dollars, and B should pay a part only of the purchase money. as, for example, a fifth or tenth part thereof, it would hardly be pretended that he would be entitled to a specific performance, pro tanto, by a conveyance of a fifth or tenth part of the |