Graver v. Scott

• Decision Date: 06 January 1876
• Citation: Graver v. Scott, 80 Pa. 88 (Pa. 1876)
• Parties: Graver <I>versus</I> Scott.
• Court: Pennsylvania Supreme Court

80 Pa. 88

Graver versus Scott.

Supreme Court of Pennsylvania.

November __, 1875.

January 6, 1876.

November __ 1875.

Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, No. 113.

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M. W. Acheson, for plaintiff in error.—The action was an equitable proceeding to enforce specific performance; the defendant, therefore, can avail himself of any equitable defence: Nicol v. Carr 11 Casey 381. Conceding that the agreement on its face is a divisible contract, the parol evidence shows that it would be inequitable to enforce the performance of but a part: Freetly v. Barnhart, 1 P. F. Smith 279; Stoddart v. Smith, 5 Binn. 355; 1 Sugden on Vendors 476, et seq.; pl. 1-24, p. 484, note g; Gibson v. Spurrier, Peak Ad. Cases 49. The parol evidence in this case did not contradict the agreement and was admissible: Barnhart v. Riddle, 5 Casey 92; Miller v. Fichthorn, 7 Id. 252; Chalfant v. Williams, 11 Id. 212; Powelton Coal Co. v. McShain, 25 P. F. Smith 238. The plaintiff was bound to tender a deed before suit: Withers v. Atkinson, 1 Watts 236; Smith v. Webster, 2 Id. 478.

W. S. Purviance and S. A. Purviance, for defendant in error.— The agreement is as if a contract had been made for each property by a distinct writing; in such case the contract would have been divisible: Roberts v. Beatty, 2 Penna. R. 69. If the part to be performed by one party consists of distinct items and the price to be paid by the other is apportioned to each item, the contract is severable: 2 Parsons on Contr. 29, 31; McClurg v. Price, 9 P. F. Smith 420; Lucesco Oil Co. v. Brewer, 16 Id. 351; Coffman v. Hampton, 2 W. & S. 377; Barclay v. Tracy, 5 Id. 45; Tompkins v. Haas, 2 Barr 74. As to the admission of the parol evidence they cited: Balt. & Phila. S. B. Co. v. Brown, 4 P. F. Smith 81.

Mr. Justice WOODWARD delivered the opinion of the court, January 6th 1876.

Upon its face, the instrument executed by these parties on the 13th of September 1843, created two separate and independent contracts. The ice-pond lot was sold for $2500, in two stipulated payments. The consideration for the coal property was to be the payment at the end of each year of half a cent per bushel for all the coal dug and delivered, the purchaser, the defendant below, agreeing to use $1000 worth of coal each year at the specified price. On the trial the ground was taken on the part of the defence, that while the agreement was separable and divisible in its provisions, yet in fact, in view of the understanding of the parties, it was an entire contract, and was induced by a single substantial consideration. Evidence was given to prove that the motive of the defendant was to obtain the title to the ice-pond lot for the erection of an oil refinery; that he did not want the coal lot, and under no circumstances would have purchased it by itself, but was compelled to take it, as the plaintiff insisted on selling both properties together; and that the subjects-matter of the agreement were treated as an entirety throughout the negotiations. It was shown also that one Tarr was in possession of the ice-pond property when the contracts were made, and was not dispossessed until December 1874, two months after this suit was brought. In the charge of the court, the jury were instructed that the evidence had been improperly received, and should be disregarded; that the rights of the parties were governed by the agreement; and that as a matter of law no defence had been shown to plaintiff's claim.

In the absence of any proof of explanatory facts, when property is sold by a single contract in separate lots, and a title to a portion of them fails, equity will compel the purchasers to take the lots to which title can be made: 1 Sugden on Vendors 291. Thus, in Poole v. Shergold, 1 Cox 273, a man became the purchaser of several lots of an estate, the title to two of which failed. Upon the master's report Lord Kenyon said he must take it for granted that these two lots were not complicated with the others, so as to entitle the purchaser to resist the whole, and therefore decreed specific performance pro tanto. But it was said in the same case, that if a title cannot be made to a lot which is complicated with the rest, the purchaser will not be compelled to accept the rest. And Lord Kenyon said that if a purchase was made of a mansion house in one lot, and of farms, &c., in others, and no title could be made to the mansion house, it would be a ground to rescind the whole contract. In a previous case, before Sir Thomas Sewell, Master of the Rolls, a man who had contracted for the purchase of a house and wharf was compelled to take the house, although he could not get the wharf, and although it appeared that his object was to carry on his business at the wharf. This was declared by Lord Kenyon to be a determination contrary to all justice and reason; and in a note to 1 Sugden on Vendors 294, it is stated that "this case has been frequently disapproved, and would not have been so decided at this day." In Stoddart v. Smith, 5 Binney 355, it was said by Tilghman, C. J., that "there are cases where failure to part ought to dissolve the whole contract. * * * The principle is this, that where the part lost appears to be so essential to the residue that it cannot be reasonably supposed the purchase would have been made without it, the contract is dissolved in toto." In that case the contract was enforced as to the residue for which title could be made, but the reasons given were, that the five lots lost were not adjoining or particularly connected with the others; and that "there was no evidence of their being in any way essential to the use or full enjoyment of the residue." In Freetly v. Barnhart, 1 P. F. Smith 279, which was a bill in equity to enforce the specific execution of a contract, the plaintiff had agreed to sell to the defendant three leases of land in West Virginia, in consideration for which the defendant was to convey to the plaintiff eight acres of land in Venango county, Pennsylvania, and become a member of the ...