contract : Mortgage damages. It' is shown by the evidence that a part of the consideration paid by plaintiff to Chandler and Lock-hart for the lands, was a steam mill which, by the term of a written contract, was to be moved by them from the premises of plaintiff to the place where they intended to rebuild it. Plaintiff was bound by this contract to “ set up the engine and place the same in running order,” and the other parties obligated themselves, that, as soon as the mill was delivered on the premises where they designed locating it, they would have the lands released from the deed of trust thereon to Hunt. It is claimed by plaintiff, that, about the time of the execution of the deed and contract, and at different times thereafter, Hunt agreed that, when the mill should be set up on the premises selected for that purpose by Chandler and Lock-hart, which were owned by him, and leased to them, he would release the lands from the deed of trust upon their executing a mortgage to secure the debt upon other lands and upon the mill ; that this agreement was made with all the parties, the plaintiff as well as Chandler and Lockhart, and that plaintiff, relying upon this agreement of Hunt, executed the contract and proceeded in good faith to perform his undertaking, therein expressed, to put up the mill. The defendants contend that Hunt agreed to accept the other security when the mill should be “in good running order and doing a good business;” that Beeson failed to put it in such order, and that Chandler and Lockhart were compelled to expend a large sum in order so to do, and, on account of this failure of plaintiff, they refused to execute the security to Hunt necessary to obtain a release of the lands from the deed of trust; that about the first of July, 1860, the mill was put in good running order by Chandler and Lock-hart, and no offer was made by them, after that time, to *442execute the security, but they refused- so to do when requested by Hunt, who, thereupon, proceeded to have the land sold by the trustee.

The evidence is voluminous and conflicting. W e are able, however, to arrive at the following conclusions of fact:

1. That if Hunt did in fact agree to accept other security than the land in controversy for his claim, it was to include the mill when it should be in good running order and doing a good business.

2. The security contemplated under the agreement was never given or offered to be given by any of the.parties to the agreement.

3. The mill was. in the condition contemplated in the agreement before Hunt caused the land to be sold, and the agreement, so far as the mill was concerned, could have been performed.

4. After the mill was in the condition described by the terms of the agreement, Hunt proposed to accept the new security, but the proposition was declined by Chandler and Lockhart.

5. No fraud was practiced toward plaintiff by Hunt, either in the transaction prior to the sale, or in the sale itself.

6. The agreement between plaintiff and Chandler and Lockhart, in regard to putting up the mill, was sufficiently performed by plaintiff.

I. From these conclusions of fact, we are of the opinion that plaintiff is entitled to no relief by the redemption of the land, or otherwise, as against Hunt. Hunt’s agreement was with plaintiff and Chandler and Lockhart; if they failed to perform their part of the agreement, he could not have been required to perform his. If their failure was the fault of Chandler and Lockhart, surely Hunt cannot be held liable therefor, and no equities arise *443in plaintiff’s favor thereby. In this view of the case, it is unnecessary to inquire whether the agreement is of such a character and so supported by a consideration that it could have been enforced by plaintiff against Hunt. Hunt having neither practiced fraud upon plaintiff, nor violated his agreement in the transaction, and the sale upon the trust deed, so far as the facts appear in the record, having been regular, the sale cannot be disturbed nor the deed set aside.

II. There is no controversy that Chandler and Lockhart agreed, upon a sufficient consideration, to discharge the lien of the deed of trust from the land, and their failure to do so is admitted, but is attempted to be excused because plaintiff did not perform his agreement to put up the mill. This defense, we have found, is not sustained by the evidence. They are liable, therefore, to plaintiff on account of their failure to discharge the land from the lien of the deed of trust. Whether the judgment rendered against them by the District .Court be in the sum to which they are legally liable, we will not inquire. No objection is made by them, in this court, to this judgment on that account, and we will not therefore reverse it unless such reversal is asked by the plaintiff. Inasmuch, as this judgment, without the right to redeem the land under the sale by the trustee, may not, as against them, give plaintiff all the relief to which he may be entitled, the reversal may depend upon his option.

The decree as against Hunt is reversed, and the cause is remanded, with directions that the judgment against Chandler and Lockhart stand affirmed, unless plaintiff otherwise elect. In that case, he shall have the right to dismiss his petition without prejudice as against Chandler and Lockhart.

Eeversed.