Howard v. Stillwagon
| Decision Date | 06 July 1911 |
| Docket Number | 150 |
| Citation | 81 A. 807,232 Pa. 625 |
| Parties | Howard, Appellant, v. Stillwagon |
| Court | Pennsylvania Supreme Court |
Argued May 8, 1911
Appeal, No. 150, Jan. T., 1910, by plaintiff, from judgment of C.P. Fayette Co., Dec. T., 1908, No. 238, for defendant n.o.v. in case of Leslie A. Howard v. Anna M. Stillwagon et al. Reversed.
Assumpsit for purchase money paid under a rescinded contract of sale. Before UMBEL, P.J.
The facts are stated in the opinion of the Supreme Court.
At the trial the jury returned a verdict for the plaintiff for $3,078.60. Subsequently the court entered judgment for defendant non obstante veredicto.
Error assigned was in entering judgment for defendant non obstante verdicto.
H. S Dumbauld, with him Robinson & McKean, for appellant. -- The entering of judgment rescinded the contract: Seanor v McLaughlin, 165 Pa. 150; Campbell Printing Press & Mfg. Co. v. Hickok, 140 Pa. 290; Scott v. Hough, 151 Pa. 630.
A verdict and judgment for plaintiff in ejectment decides that plaintiff is entitled to the premises and no more: Stevenson v. Kleppinger, 5 Watts, 420; Enyard v. Enyard, 190 Pa. 114; Schwan v. Kelly, 173 Pa. 65; Piro v. Shipley, 33 Pa.Super. 278.
Having seen that the judgment confessed is not conclusive, and that defendants by entering it under the circumstances, rescinded and made void the contract, this case is ruled by Feay v. DeCamp, 15 S. & R. 227, and Jacoby v. Stettler, 8 Sadler, 31.
W. J. Sturgis, with him S. J. Morrow, for appellees, cited: Youst v. Martin, 3 S. & R. 423; Power v. North, 15 S. & R. 12; Jones v. Scott, 209 Pa. 177.
Before FELL, C.J., BROWN, MESTREZAT, POTTER and MOSCHZISKER, JJ.
There is no fact in dispute in this case. By an agreement in writing, dated April 18, 1904, the appellees agreed to sell to the appellant and he agreed to buy from them a lot of ground in the borough of Connellsville for $5,800. The property was encumbered by a mortgage for $2,100, which he agreed to assume, and the balance of the purchase money was to be paid as follows: $600 cash upon the signing of the agreement, $400 within two weeks, $1,350 in three months and $1,350 in six months, the deferred payments bearing interest. The contract provided that, "on failure of the second party to pay the purchase money, or any part thereof or the interest and taxes as above mentioned, then this agreement to be void, as it regards the the first parties, at their option." By the terms of the agreement the appellees were authorized to enter judgment against the appellant for the purchase money, and a further provision authorized any attorney to confess judgment in ejectment against him upon his failure to pay it. The last installment was due on October 18, 1904, but up to that time the appellant had paid only $1,777 and some interest. Subsequently he paid the appellees $664.42 and interest. So far as can be gathered from the records, these payments were accepted by the appellees without complaint or protest, and the appellant was justified in believing that they would not insist upon strict compliance with the terms of the agreement so far as the times of payment were concerned. Up to June 12, 1906, he had paid them $3,005.36, which included $553.94 interest.
The appellees had two remedies under the agreement for the appellant's default in paying the purchase money. In affirmance of their contract with him they could have entered judgment against him and enforced payment out of any property which he might have owned, including that which was the subject of the agreement. This they did not do, but, in accordance with the option which they had reserved to themselves in the agreement, they treated it as void, and on November 13, 1906, without giving the appellant notice that no further indulgence in making payment would be granted, and without tendering him a deed and demanding the balance of the purchase money, they entered a judgment in an amicable action of ejectment to recover possession of the property. Upon this judgment a writ of habere facias possessionem was duly executed and the appellees were put in possession of the property. The stipulation in the agreement that on the default of the appellant in paying the purchase money, or any part thereof, the appellees might, at their option, treat it as void, gave them the authority to rescind, and their action in summarily repossessing themselves of the property was a rescission of the contract between them: Campbell v Hickok, 140 Pa. 290; Scott v. Hough, 151 Pa. 630; Seanor v. McLaughlin, 165 Pa. 150. If the appellees elected to treat the agreement as void, as they did, nothing is to be found in it, and nothing was developed at the trial, to justify...
To continue reading
Request your trial