Humphrey v. Brown

• Citation: 139 A. 606,291 Pa. 53
• Decision Date: 28 November 1927
• Docket Number: 117
• Parties: Humphrey et ux. v. Brown et ux., Appellants
• Court: Pennsylvania Supreme Court

139 A. 606

291 Pa. 53

Humphrey et ux. v. Brown et ux., Appellants

No. 117

Supreme Court of Pennsylvania

November 28, 1927

Argued September 26, 1927

Appeal, No. 117, March T., 1927, by defendants, from decree of C.P. Jefferson Co., Jan. T., 1927, No. 1, awarding specific performance, in case of Lee B. Humphrey et ux. v Frank K. Brown et ux. Affirmed.

Bill for specific performance. Before DARR, P.J.

The opinion of the Supreme Court states the facts.

Decree of specific performance awarded. Defendants appealed.

Error assigned, inter alia, was decree, quoting record.

The decree is affirmed at the cost of appellants.

H. M Rimer, with him A. A. Geary, for appellants. -- While the relation of agency may not be established by the agent's declarations, it may be established by his testimony: Hileman v. Falck, 263 Pa. 351.

The decree in this case was for enforcement of a contract, executed by appellants, relying solely upon false representations, promises and agreements, later repudiated.

Specific performance is not a matter of right but rests in the judicial discretion of the court, is always exercised subject to general equitable considerations and will not be applied to cases where the complainant does not come into court with clean hands or where acts exist on the other side which would render it unjust to grant the relief: Welsh v. Ford, 282 Pa. 96; Rennyson v. Rozell, 106 Pa. 407; Allen v. Kirk, 219 Pa. 574; Friend v. Lamb, 152 Pa. 529; Holmes's App., 77 Pa. 50; Mundorf v. Wickersham, 63 Pa. 87.

Raymond E. Brown, for appellees. -- Where parties without fraud or mistake have deliberately put their engagements in writing, the law declares the writing not only the best but the only evidence of their agreement: Thorne, McFarlane & Co. v. Warfflein, 100 Pa. 519; Union Storage Co. v. Speck, 194 Pa. 126; Wolverine Glass Co. v. Miller, 279 Pa. 138; Neville v. Kretzschmar, 271 Pa. 222; Wagner v. Marcus, 288 Pa. 579; Cridge's Est., 289 Pa. 331; Indemnity Ex. v. Casualty Co., 289 Pa. 426.

If the defense attempted to be set up by appellants had been properly pleaded, which is not the case, the proof thereof falls far short of the requirements of the well established rule that such proof must be clear, precise and indubitable: Honesdale Glass Co. v. Storms, 125 Pa. 268; Snyder v. Phillips, 25 Pa.Super. 648; Highlands v. R.R. Co., 209 Pa. 286; Juniata B. Assn. v. Hetzel, 103 Pa. 507; Keller v. R.R., 10 Pa.Super. 240; Spotts v. Spotts, 4 Pa.Super. 488.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SADLER:

Plaintiffs, Humphrey and wife, entered into a written agreement, dated June 17, 1926, with the defendants, Mr. and Mrs. Brown, to purchase a house and lot of ground, in the Borough of Brookville, for the sum of $47,500. Of this amount $34,000 was to be paid in cash, on or before delivery of the deed on October 15th following, the balance to be liquidated by the conveyance of a designated property by the former to the latter at a valuation fixed at $13,500. When the contract was signed, $2,500 was paid to Brown as hand money, and a like additional sum was turned over to him on June 30th. On October 15th, the date named for settlement, the purchaser called upon the seller for the purpose of closing the transaction, but was advised by the latter that he was not prepared to convey the property on that day. Humphrey offered to come back on the day following, but this was inconvenient for Brown, whereupon the former stated that he would return on the completion of a short contemplated business trip which he was about to undertake, and no complaint of delay on this account was made.

On October 26th Humphrey again went to the office of defendant, at which time he was notified that the transaction would not be carried out, because the plaintiff was "too late." An offer was made by Brown on October 30th to return the $5,000 paid on account, but the delivery of a deed, as agreed upon, was refused. On November 5th, plaintiff interviewed defendant again, tendered to him the balance of the purchase-money, and presented an executed conveyance for the property which he had agreed to transfer as part of the consideration. The defendant refused to accept, or carry out the terms of the contract, and this bill to compel specific performance of the contract followed.

The facts narrated were found by the court below after hearing, and are binding upon us, where supported by evidence. An examination of the record shows the conclusions reached to be justified. Defendants cannot complain of the delay of plaintiffs in making the tender of the balance of the purchase price and the deed for the property which was to be conveyed as part of the consideration, since the Humphreys were ready to take title at the time and on the terms agreed on: Loughney v. Quigley, 279 Pa. 396; Werdebach's Est., 280 Pa. 26. Indeed, they did not so insist in the court below, nor do they urge here, that specific performance must be refused on this ground, though this was the only reason assigned for repudiating the promise, to the time of filing the answer in this proceeding.

The defense now asserted rests on different averments. It is first alleged that the understanding, not suggested before, was that the Browns should have the right to withdraw from the agreement at any time, if they should so desire, and thereby relieve themselves of any duty to convey. No such reservation appears in the written contract, which is express in its terms and without ambiguity. "All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract, . . . and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence": Gianni v. Russell, 281 Pa. 320, 323. There was no allegation of the omission of this asserted understanding by reason of fraud, accident or mistake, nor, as found by the court, any evidence to support such a contention, and no such claim was made when defendant refused the demand to carry out his agreement. The defense set up is unsupported in fact and without merit in law under the evidence adduced at the trial.

A second excuse for nonperformance was based on allegations that the original proposition made by Brown, through Clark, a real estate broker, was to sell two properties, the residence now in question, and a theater building, for a lump sum of $180,000, it being averred the understanding was that one should not be disposed of without the other, and Humphrey had agreed to buy both. From the evidence it appears that the agent, originally employed by Brown, came to Brookville for the purpose of securing a purchaser for the two pieces of real estate. Later, he communicated with Humphrey, and finally secured his assent to purchase the residence. He also made efforts to interest the latter in the theater, and preliminary negotiations for the acquirement of it by plaintiff followed. A contract to sell the same, dated June 10, 1926, was executed by the Browns, but Humphrey refused to sign the...