Hawk v. Greensweig
| Citation | 2 Pa. 295 |
| Parties | HAWK <I>v.</I> GREENSWEIG. |
| Decision Date | 30 March 1845 |
| Court | United States State Supreme Court of Pennsylvania |
Reeder, for plaintiff in error.—The delivery of the deed was a condition precedent to any acts on our part, and no advantage could be taken for non-compliance by us, while he was in default, especially after he had refused to comply. But the court erred in leaving the question to the jury, whether we had complied or shown a disposition to trifle; for it was a matter of law for the court, as chancellor, whether, under the evidence, he would decree a performance. The danger of this is shown in 1 Story's Eq. sect. 19; 8 Watts, 378, 379; it is to make an ever-varying rule of equity. In equity non-performance of a condition precedent cannot be relieved against, but is held as strictly as at law. Jones v. Berkley, Doug. 665; Thorp v. Thorp, 1 Lord Raym. 662; 2 Story's Eq. sect. 773; Ca. temp. Finch, 445; Newlin Cont. 249; Sanders v. Pope, 12 Ves. 289; Hill v. Barclay, 16 Ves. 403. So there are cases in our own books which may be said to decide it, Williamson v. Develing, 9 Watts, 311; Brown v. Metz, 5 Watts, 164; Bossler v. McKnight, 2 Serg. & Rawle, 352.
Ihrie and J. M. Porter, contrà.—The question is, whether the court will not leave the defendants to their remedy at law; for to entitle him to a conveyance he must have done everything on his part to be done, Griffith v. Corkran, 5 Binn. 105, where in our courts he is considered as possessing the legal title. The acts of the parties were the proper evidence to show an abandonment of the contract, so far as a determination not to perform it, Ong v. Campbell, 6 Watts, 396; and the previous tender was not essential on our part, Smith v. Webster,
2 Watts, 478, having been overruled in Brown v. Metz, 5 Watts, 164. The court look to the condition of the parties at the time of the decree, in a case like this, Markley v. Schwartzlander, 8 Watts & Serg. 176; that is, of grace; 1 Watts, 401, Pennock v. Freeman. But there would be peculiar hardship in this case had defendants recovered. We should have been left to the personal covenant of one party; the other, having executed as guardian, was not bound, neither were his wards. [Chief Justice and Kennedy, J. — He would be personally bound.] There is a learned opinion of Luther Martin, in the Law Journal, contrà. [Kennedy, J. — It has been well settled since, that he is.] The party did not refuse to execute the deed to the party, nor request his declaration to be communicated; so it comes to this — would the court compel him to perform his contract, 2 Binn. 129; 17 Serg. & Rawle, 247; 2 P. Wms. 204; 7 Watts, 375, 144; 9 Watts, 16; 4 Whart. 230, where it is a gift in substance, and the small return has been refused, the party driven from his home by the conduct of the claimants?
March 30. ROGERS, J., after stating the case.
The action is brought to rescind the contract and recover the possession, and the plaintiff rests his case on two grounds: First, That the contract was obtained by fraud and misrepresentation. Second, That the defendants have failed to comply with the terms of the agreement.
The first ground is easily disposed of. There is not a particle of evidence of fraud or misrepresentation, and so the court instructed the jury. That he may have been induced to enter into the arrangement by affection for his wife and step-children, and for this reason to have given them the property on more favourable terms than strangers, is very probable. But this is the extent of the plaintiff's proof on that head. The scrivener, who drew the agreement, and who seems to have been the confidential friend of all parties, states: That the plaintiff called on him alone to write the agreement; said he had made an arrangement to sell his land to the Hawks; that the boys lived with him, and were smart boys, and that he intended to give them a chance. Here we have his motives disclosed, which do honour to his good feelings. It was not done in a hurry, nor unadvisedly. The witness says, he had often spoken of the sale of the property afterwards and before; told him he intended to sell it to the children. This was a natural disposition, especially as he had no children of his own; but that there was any undue influence or imposition practised on him, by any person, does not appear. We have assertions, surmises, and conjectures, to that effect, but there is no proof of these allegations. It is not even clear, under the circumstances, that it was an improvident contract; but that of itself would be no ground of relief, although in the case of an executory contract it may be urged as a reason for refusing the extraordinary interposition of a court of equity. That it does not answer the expectations of all the parties, may, perhaps, be as much attributable to the infirmity of the plaintiff's temper excited by domestic squabbles, as to any fault properly imputable to the defendants. But, be this as it may, we do not see the justice of visiting on the children the faults or misconduct of the mother. It will be remarked, she has an interest in the agreement, not only as a wife, but because the article contains a stipulation in her favour. It would be an easy and convenient mode to avoid an improvident or silly contract, if the quarrels of husband or wife generally could be used as a pretext for that purpose.
But is the plaintiff entitled to recover on the ground that the defendant has not complied with the contract?
The case, as it is presented by the evidence, is in the nature of a bill to rescind and cancel the agreement. The plaintiff brings ejectment, and the defendants ask the interposition of the court, by way of injunction, to restrain the plaintiff from making an improper use of his legal title in a court of law. It requires, I apprehend, less proof to induce a court of chancery to refuse its interposition on an application to enforce the specific performance of a contract, than it does to cancel and annul an agreement. When a contract is executory, and one party seeks a specific performance, the interference of the court is discretionary. The court will refuse its aid when the party seeking to enforce the agreement has neglected or refused to perform his part, or has been guilty of any trifling or delay. He is left to his remedy for damages at law. But where the contract has been in part executed, as by delivery of the possession, and the retention of it for several years, making improvements, they require more stringent proof of the abandonment of the...
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