The court properly decided that there was no variance between the contract declared on and the one offered in evidence.
The measure of damages, in this case, was not the value of the land when the contract was made, but its value at the time of the breach of that contract. Here no time was specified when the title from Tuller should be obtained. That portion of the contract on which the breach is assigned, is in these words: “ the undersigned agreeing to obtain a deed by quit-claim, or otherwise, for one-half of said sub-lot 9, of H. L. Tuller, or such other party as may have the title to the half part of said lot formerly conveyed to said H. L. Tuller.” The party did not claim to have the title himself, nor was he to make the conveyance. He agreed to procure the title from another, and without any specification of time within which it should be done. This gave to Gale a reasonable time within which to procure the conveyance. On the one side it was insisted, that the contract was broken after the expiration of a reasonable time, though both parties remained passive; while on the part of Dean it was insisted, that there could be no breach until he had requested Gale to perform and he had thereupon failed or refused to do so. We think neither of these positions is correct. We do not think that Gale, when he found he could not perform, was absolutely at the mercy of Dean, for the determination of the time when his liability should be fixed, and the measure of that liability determined. We think, after the expiration of a reasonable time, and after making all reasonable efforts to procure the conveyance from Tuller, without avail, that it was the right of Gale to notify Dean that he could not perform the contract, and thus, by his own affirmative act, create a breach and determine the time when the value of the land should be estimated, to establish the measure of damages which he was bound to pay, for the breach of the agreement. Until such notice was given, Dean had a right to believe that the' contract would be performed, and to make improvements and enjoy the premises, in view of that supposition ; but when he was notified that Gale could not perform the contract, by procuring the title, he was no longer at liberty to act as if it was to be performed, and if he made further improvements, or did other acts, on the assumption that it would be performed, he did them in his own wrong, and could not use them to enhance his damages. This is in accordance with those principles of reason and justice which characterize the common law. We should never so construe a contract as to give one party an unfair or an unreasonable advantage over another, unless such was the manifest intention of the parties at the time it was made. We cannot presume here that it was the intention *324of either party, at the time the contract was made, in case Gale should be unable to procure the conveyance from Tuller, that it should be left entirely to Dean’s discretion to postpone the time at which the value of the property should be taken for the pulpóse of fixing the measure of his damages, and that Gale should be obliged to stand by, dumb and powerless to act, and see the property rising in value, till it had arisen, as in this case, more than one thousand per cent., and then be obliged to respond in damages to the full enhanced value of the property. When the contract was made, both parties knew that it was uncertain whether it would be possible for Gale to perform or not, and it is not reasonable to suppose that Gale thought he was receiving, or that Dean believed he was paying, a consideration adequate to such a contingent liability, in case it should be impossible for Gale to perform. It is one of the cherished objects of the law to maintain a reciprocity between the parties to contracts, wherever that can be done without doing violence to the language used. It is just as unreasonable, and there is just as great a want of reciprocity, in allowing Dean to hold on indefinitely, before fixing the time for declaring the breach, in case he saw the property appreciating in value, as there would be in allowing Gale to do the same thing in case he saw the value of the property .depreciating. A just sense of reciprocity must require that either of the parties, after the lapse of a reasonable time, might declare a breach of the contract, if not performed; the one party by demanding performance and declaring it broken if it is not performed, and the other party by giving notice that he could not perform.
There was evidence tending to show such a determination and breach of the agreement by Gale, after the lapse of a reasonable time to perform, if that had been possible ; and it was admitted on the trial that Gale had acted in good faith throughout, and it should have been left to the jury to say whether there had been such determination and breach by Gale. With a view to this, his counsel asked the court to instruct the jury as follows: “ If the jury shall believe, from the evidence, that the witness, James H. Rees, had interviews with the defendant, at the instance of the plaintiff, in relation to the procuring of the quit-claim deed referred to in the contract given in evidence, then the statements made by the defendant to said Rees, at these interviews, and by him communicated to the plaintiff, are to be considered by the jury as having been made by the defendant to the plaintiff; and if the jury shall believe that the defendant did not act in bad faith, either in making the contract or in failing to perform the same, and that the plaintiff, in the manner above stated, was informed of defendant’s inability to procure said quit-claim deed, then the measure of damages in this case will not exceed the *325value of the premises to be conveyed by said deed, at the time when such communication was made to the defendant, with interest thereon at six per cent, per annum, to the present time.” This instruction the court refused to give, but, on the contrary, instructed that the measure of damages was the value of the land at the time Dean demanded the performance and Gale’s non-compliance with such demand; to which rulings exceptions were taken. In this we think the court erred. The judgment must be reversed and the cause remanded.