Friend v. Lamb

• Decision Date: 03 January 1893
• Docket Number: 277
• Citation: 152 Pa. 529,25 A. 577
• Parties: Friend, Appellant, v. Lamb
• Court: Pennsylvania Supreme Court

25 A. 577

152 Pa. 529

Friend, Appellant, v. Lamb

No. 277

Supreme Court of Pennsylvania

January 3, 1893

Argued November 8, 1892

Appeal, No. 277, Oct. T., 1892, by plaintiff, Harry T Friend, from decree of C.P. No. 1, Allegheny County, March Term, 1891, No. 991, in favor of defendant, Martha E. Lamb et al.

Bill in equity for specific performance.

The bill averred that plaintiff was owner of a certain piece of land in Braddock township, Allegheny county, Pa., containing seventy acres, subject to two leases, expiring April 1, 1891 to James Hamilton, a stone lease at fifteen cents a perch on all stone taken out; and to Samuel McKelvey, a farm lease at a rental of $250 per year. That by an article of agreement dated Sept. 15, 1890, plaintiff agreed to sell this property, subject to the two leases, for the price of $50,000, payable as follows: One thousand dollars on signing agreement, $4,000 on Nov. 1, 1890, $45,000, the balance, to be secured by bond and mortgage, payable $5,000 Nov. 1, 1891; $7,000 Nov. 1, 1892; $7,000 Nov. 1, 1893; $7,000 Nov. 1, 1894; $7,000 Nov. 1, 1895; $7,000 Nov. 1, 1896; $5,000 Nov. 1, 1897, interest payable semi-annually. The first two payments of $5,000 and $7,000 were to be secured by a collateral mortgage on other property of Martha E. Lamb. That, on Nov. 1, 1890, plaintiff, being the owner of said property by a good and marketable title, made a tender of a deed of conveyance in fee simple, duly signed by himself and wife, to Martha E. Lamb, and offered the bonds and mortgages to Martha E. Lamb and Benj. F. Lamb to be executed by them. That they refused the tender and refused to pay the purchase money and execute the bonds and mortgages. The bill prayed that the defendants be ordered to carry out the agreement, and general relief.

The answer of Martha E. Lamb alleged that it was verbally understood and agreed, at the time of signing the agreement, that the said land was not to be taken subject to the leases referred to in the bill. It also averred that, at the time of making the agreement, plaintiff and his agents represented that the tract was underlaid with coal, and defendant relying on this representation made the agreement; that this representation was false, as the coal had been almost entirely removed; that defendant had refused to accept the deed because of these facts.

The facts appear by the opinion of the Supreme Court.

The case was referred to J. M. Shields, Esq., as master, who recommended a decree in accordance with the prayers of the bill. Exceptions to the master's report were sustained by the court, and a decree entered dismissing the bill, in an opinion by STOWE, P.J.

Error assigned, inter alia, was decree, not quoting it.

Decree affirmed and bill dismissed at the cost of the plaintiff.

Edwin W. Smith, Knox & Reed with him, for appellant. -- Mrs. Lamb examined the land, and could not have been deceived as to the representations as to the coal. Under the circumstances of the case, a decree should not be entered in favor of defendant on this ground: Pomeroy, Eq. § 892; Watts v. Cummins, 59 Pa. 91; Phipps v. Buckman, 30 Pa. 401; Clark v. Everhart, 63 Pa. 347.

Mrs. Lamb had power to make the contract: Koechling v. Henkel, 144 Pa. 219; Real Estate Co. v. Roop, 132 Pa. 501.

There is one question that the learned judge below thought was in this case, although not raised by the answer nor spoken of by a witness nor suggested by the counsel for defendants nor discussed by the master -- the improvidence of the contract. After weeks of consideration and investigation, assisted by her husband and Collins, Mrs. Lamb signs the contract and her husband signs it too. There is not a breath of testimony that the property was not worth what was to be paid for it. The court, however, thinks because a collateral mortgage was to be given to secure the first two deferred payments that the contract was improvident.

James S. Young, S. U. Trent with him, for appellee. -- Specific performance is not a matter of course, but rests in the sound discretion of the chancellor; it may be refused notwithstanding a contract obligation, if there be circumstances rendering it inequitable: Freetly v. Bernhart, 51 Pa. 279; Weise's Ap., 72 Pa. 351; Elbert v. O'Neil, 102 Pa. 305; Rennyson v. Rozell, 106 Pa. 407; 1 Pomeroy, Eq. § 400.

Mrs. Lamb testifies as to the misrepresentations and is corroborated by Collins, a disinterested witness, and is alone contradicted by Miller, the interested agent for plaintiff, and even he admits there was a conversation about the coal. Considering then the harshness and inequality of the bargain and adding to it the misrepresentations about the coal, how could a chancellor do otherwise than refuse to enforce the contract; Holmes's Ap., 77 Pa. 50.

The contract was void because Mrs. Lamb was a married woman: Real Estate Investment Co. v. Roop, 132 Pa. 496; Bauck v. Swan, 146 Pa. 444; Heugh v. Jones, 32 Pa. 432; Guyer v. Harrison, 103 Pa. 489; Lippincott v. Leeds, 77 Pa. 422.

It is difficult to conceive of a more improvident contract -- $5,000 cash and $45,000 of a debt incurred, and her separate estate involved to the amount of $12,000 by the collateral mortgage.

Before PAXSON, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL and HEYDRICK, JJ.

OPINION

MR. JUSTICE GREEN:

We are of opinion that the learned court below, rather than the master, adjudged correctly the facts and law of the present contention. It is not a case of mere legal right and is not dependent solely upon principles which control the determination of causes of that character. The proceeding is by bill in equity, and the relief sought is the specific performance of a contract for the sale of a tract of land for the price of fifty thousand dollars. The defendant against whom the contract is proposed to be enforced is a married woman, and as only five thousand dollars of the purchase money were to be paid in cash, the sale is to be regarded as one made almost entirely upon credit, and the credit is to be secured by a mortgage for the sum of forty-five thousand dollars in annual payments of five and seven thousand dollars respectively, with interest on all, and reaching over a period of seven years. For a man to encumber himself with such a contract, would be, in all ordinary circumstances, a rash, improvident and extremely hazardous undertaking. Nothing but a rare combination of fortunate events to occur in the very near future, capable of being foreseen by an extremely sagacious and experienced operator in speculative transactions, would justify such a contract in the ordinary judgment of men. But with a woman, especially a married woman, unless possessed of ample cash capital to meet her maturing payments, and a special skill and experience in conducting such affairs, an engagement of this character would seem to be almost entirely destructive of the least prospect of success, and improvident and oppressive to the last degree. There is no evidence in this case that Mrs. Lamb possessed any of the essential qualifications either in capital or experience to conduct such an enterprise to a successful conclusion. Where the money was to come from to meet the annual payments does not appear, and the consequences of "the usual sci. fa. clause" are well enough known to indicate what would become of the property if the payments were not promptly met. We deem the contract in this case as highly improvident and rash, and most likely to result in great disaster even before the maturity of the payments and therefore oppressive in its character. In its merely legal aspects these considerations could not be regarded and they would not constitute a defence to an action to recover damages for its breach. But in equity the rule is very different where the application is for a specific performance of the contract. It was thus expressed by this court in Freetly v. Barnhart, 51 Pa. 279, where we said that "there is nothing...