Espy v. Anderson

• Decision Date: 21 October 1850
• Citation: 14 Pa. 308
• Parties: Espy <I>versus</I> Anderson.
• Court: Pennsylvania Supreme Court

14 Pa. 308

Espy versus Anderson.

Supreme Court of Pennsylvania.

October 21, 1850.

ERROR to the Common Pleas of Jefferson county.

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The case was argued Lucas, for Espy, plaintiff in error, and by Arthurs, for defendant.

The opinion of the court was delivered, Oct. 21st, by COULTER, J.

The defendant below offered to prove that, after making the article of agreement given in evidence by the plaintiff, and before the defendant took possession, a parol agreement was made between the parties to rescind it, and that Anderson then admitted that he could not make title, to be followed by proof that, after the recision, another parol agreement was made between the parties, under which Espy took possession. The court below rejected this evidence, which is assigned for the first error. In equity, a written agreement may be rescinded by parol; a court of chancery will oftentimes refuse to decree a specific performance of an agreement, which, nevertheless, it will not declare rescinded; and a specific performance will be decreed upon the application of one party, when the court would refuse to act upon the application of the other. The intervention of the court can only be successfully invoked by the special circumstances of the whole case, from which the preponderating justice, on the one side or the other, is established. The action, therefore, of a court of chancery, as to such matters, is essentially dependent on discretion; not of a capricious discretion, but of sound judicial volition, according to the principles of equity. But in order to rescind a contract, under such circumstances, both parties must place themselves in the same situation that they occupied before the contract was made, so that neither can have or take advantage of the other: and that was not offered to be proved in this case. The agreement was not cancelled or delivered up; the fifty-five dollars paid on the 11th of December, 1847, was not refunded, nor was it proposed to show that any act was done in pursuance of the alleged rescision. It was then a mere naked or voluntary agreement, unexecuted, and without consideration, and, therefore, not regarded in equity as of any moment whatever. But the agreement was not considered rescinded by either party, as was fully manifested by the subsequent evidence in the cause; and, therefore, as the rejection of the proposed evidence could have been no real detriment to the defendant below, the court would not reverse on that account. David S. Deering, a witness who was called by the defendant, testified that Espy, the defendant below, brought the deed tendered to him by Anderson, and wished to know whether it conformed to his article of agreement. He instructed him that it did not. He further testified that the same deed was tendered at May court following, and the same objection was made, that it did not conform to the article of agreement. George W. Zeigler testified the same thing. He was the partner of Deering, and they were the attorneys under whose advice Espy acted. It is apparent, therefore, that both parties considered the articles in their original vigor. But the subsequent part of the offer shows plainly enough the category into which the defendant wished to bring his case; that is, he wished to establish that the written agreement was varied or altered by a parol...