Barnes v. Rea
| Decision Date | 06 January 1908 |
| Citation | 219 Pa. 287 |
| Parties | Barnes <I>v.</I> Rea, Appellant (No. 2). |
| Court | Pennsylvania Supreme Court |
Before MITCHELL, C. J. FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ. Reversed.
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F. W. Downey, with him R. F. Downey, for appellant.— We take the rule to be that the description of the real estate intended to be conveyed must be sufficiently definite that an officer could take a writ containing the description, and, by the description therein contained, locate the land: McCann v. Pickup, 17 Phila. 56; Mellon v. Davidson, 123 Pa. 298; Patton v. Develin, 2 Phila. 103; Soles v. Hickman, 20 Pa. 180; Cunningham v. Neeld, 198 Pa. 41.
It is a rule in equity that the specific performance of a contract will not be decreed unless its terms are clear and capable of ascertainment from the instrument itself: Weaver v. Shenk, 154 Pa. 206; Moore v. Small, 19 Pa. 461; Owens v. Goldie, 213 Pa. 579; Friend v. Lamb, 152 Pa. 529; Swayne v. Swayne, 19 Pa. Superior Ct. 160; Baldridge v. George, 216 Pa. 231; Hammer v. McEldowney, 46 Pa. 334.
Thomas S. Crago and James J. Purman, for appellee.— The contract contains all that is necessary, and more too. It is a good, sufficient and enforceable contract: Cadwalader v. App, 3 W. N. C. 1; Colt v. Selden, 5 Watts, 525; McFarson's Appeal, 11 Pa. 503; Tripp v. Bishop, 56 Pa. 424; Johnston v. Cowan, 59 Pa. 275; Smith & Fleek's App., 69 Pa. 474; Peart v. Brice, 31 W. N. C. 336; Troup v. Troup, 87 Pa. 149; Henry v. Black, 210 Pa. 620.
The statute of frauds was not pleaded: Luther v. Luther, 216 Pa. 1; Woods v. McMillan, 32 P. L. J. 363; Bishop v. Buckley, 33 Pa. Superior Ct. 123; Miller v. Piatt, 33 Pa. Superior Ct. 547.
OPINION BY MR. JUSTICE ELKIN, January 6, 1908:
The third, ninth, tenth, eleventh, seventeenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth and twenty-fifth assignments of error, in one form and another, raise the question whether the agreement, the specific performance of which is sought to be enforced in this proceeding, was an option to purchase or an absolute contract of sale. All that has been said in Barnes v. Rea, ante, p. 279, applies to the facts of this case, and for the reasons therein stated we sustain these particular assignments. It does not follow, however, that the decree must be reversed because of the error committed by the learned court below in holding that a binding contract had been entered into by the parties on the date of its execution, and that by reason thereof the covenants were mutual and dependent. It was clearly within the right of appellant to waive payment as a condition upon which the option could be exercised and to treat it as a valid existing agreement. This he did by acknowledging the agreement to be his act and deed before a notary public, thus declaring on the very day tender of a sufficient amount to cover the first payment was made to him, that he desired the instrument to be recorded as and for his act and deed.
The Twenty-second assignment relates to that clause of the agreement which provides that if the first payment is not made on October 2, 1899, or within ten days thereafter, it shall be considered as rescinded and neither party shall be bound thereby. The third request for findings of law asked the court below to hold that this was an independent covenant not dependent upon any other stipulation or covenant in the agreement. The learned court refused to so find, saying that while this covenant was intended and may be taken to act as a spur to the vendee in paying the purchase money, the vendor could have the advantage of it only by tendering performance on his part. This was error. The agreement was an option to purchase, and the clause in question contained the condition upon which it could be exercised so as to make it an absolute contract, binding on both parties. An option is not a sale. It is a right of election in the party taking the same to exercise a privilege, and only when that privilege has become exercised by acceptance in the manner specified in the agreement does it become an absolute contract, binding upon both parties. It is simply a contract by which the owner of property agrees with another person that he shall have the right to buy his property at a fixed price within a certain time. By such an agreement he does not sell his land, nor does he at that time enter into an absolute contract to sell and convey, but he does agree to sell something; that is, the right or privilege to buy at the election or option of the party with whom the agreement is made. The optionee under such an agreement takes, not lands, nor even an absolute agreement that he shall have lands conveyed to him, but he does get something of value; that is, the right to call for a conveyance of the lands if he elects to purchase in the manner specified. The owner parts with his right to sell his lands, except to the second party, for a limited period. It is a unilateral agreement containing the terms and conditions upon which the optionor agrees to sell and convey his land not yet ripened into an absolute contract to sell and convey on one side and to purchase and pay on the other. The covenants in such an agreement are not mutual, because mutuality imports an obligation on each party to do or permit to be done something in consideration of the act or promise of the other; that is, neither party is bound unless both are bound: Rivers v. Oak Lawn Sugar Company, 52 La. Ann. 762; Sizer v. Clark, 116 Wis. 534; Hopwood v. McCausland, 120 Iowa, 218; Hanly v. Watterson, 39 W. Va. 214; Ide v. Leiser, 24 Pac. Repr. 695; McMillan v. Philadelphia Co., 159 Pa. 142. If such an agreement is based on a valid consideration it is a binding contract and may be enforced: Johnston v. Trippe, 33 Fed. Repr. 530; Williams v. Graves, 26 S. W. Repr. 334; Corson v. Mulvany, 49 Pa. 88; Smith and Fleek's Appeal, 69 Pa. 474; Yerkes v. Richards, 153 Pa. 646.
Nor must Henry v. Black, 213 Pa. 620, be understood as authority for a different doctrine. In the discussion of what constitutes notice and acceptance in that case, Minneapolis, etc., Railway Co. v. Rolling-Mill Co., 119 U. S. 149, was cited as authority for the rule that an offer to sell imposes no obligation until it is accepted according to its terms, and that so long as the offer has been neither accepted or rejected the negotiation remains open, and imposes no obligation upon either party; the one may decline to accept and the other may withdraw his offer. What was said in the federal case, and the reference to that decision in our own case, can have no application to the facts of the case at bar, because the negotiations in that case related to the sale of personal property, while in this the agreement is to convey real estate. In that case one party by letter offered to sell a certain number of tons of rails at a fixed price per ton, giving the other party the right to accept the offer within a definite period. All the negotiations were conducted by correspondence, and these facts were relied on by...
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