Irvin v. Bleakley

• Decision Date: 09 February 1871
• Citation: 67 Pa. 24
• Parties: Irvin <I>versus</I> Bleakley.
• Court: Pennsylvania Supreme Court

67 Pa. 24

Irvin versus Bleakley.

Supreme Court of Pennsylvania.

November 11 and 12, 1870.

February 9, 1871.

November 11th and 12th 1870.

Before THOMPSON, C. J., AGNEW, READ, SHARSWOOD and WILLIAMS, JJ.

Error to the District Court of Allegheny county: No. 208, to October and November Term 1869 A. Blakely, and S. A. Purviance, for plaintiff in error.— The defendant by his conduct could not have a decree for specific performance, and the plaintiff therefore may disaffirm the contract and recover the purchase-money paid: Cooper v. Brown, 2 McLean 495; Bank of Columbia v. Hagner, 1 Peters 455. An encumbrance is an objection to the title: Garnet v. Macon, 2 Brockenbrough 186. If the vendor does not complete the contract, the vendee may disaffirm and recover back the purchase-money: Feay v. De Camp, 15 S. & R. 230; Wilkinson v. Ferree, 12 Harris 192. The vendor must discharge encumbrances: Nicol v. Carr, 11 Casey 383; Erwin v. Myers, 10 Wright 106. The question whether the defendant had abandoned the contract should have been submitted to the jury, there being facts from which it might be inferred: Youst v. Martin, 3 S. & R. 429 J. H. Kerr, and E. S. Golden, for defendant in error.—The rescission must be perfect before suit: Peirsol v. Chapin, 8 Wright 12. The undertakings are dependent: Bank of Columbia v. Hagner, supra; Keeler v. Schmertz, 10 Wright 135. Performance may be waived by mutual acquiescence, and neither gains an advantage: Shaw v. The Turnpike, 3 Penna. R. 445; Youst v. Martin, 3 S. & R. 423; Power v. North, 15 Id. 12. When a party intends to rescind he must do so promptly on the breach: Lawrence v. Dale, 3 Johns. Ch. 22; Fry on Specific Performance, sect. 703; Ayers v Mitchell, 3 S. & M. 683; McKay v. Carrington, 1 McLean 50.

"Whichever party has the right to rescind, must do it within the time specified, if there be such time, otherwise within a reasonable time:" 2 Parsons on Contracts 677. Where there has been indulgence on both sides, one party cannot suddenly rescind without notice to the other: Forsyth v. N. A. Oil Co., 3 P. F. Smith 173; 3 Leading Cases in Equity 87; Wiswall v. McGowan, Hoffman's Ch. 125-129; Dalzell v. Crawford, 1 Parsons's Rep. 56; Tiernan v. Rowland, 3 Harris 429.

A written contract for sale of land should not be abandoned by parol: Fuller v. Hubbard, 6 Cowen 1; Fry on Specific Perf., sects. 698, 699; 2 Parsons on Contr. 675, 679; Price v. Asherton, 1 Y. & C. 82.

The delay is a question of time, merely, and this is never per se material, unaccompanied with change of circumstances or other facts rendering justice impossible: Pratt v. Law, 9 Cranch 456; Brashier v. Gratz, 6 Wheaton 528; Tiernan v. Rowland, Dalzell v. Crawford, supra; Smith v. Patton, 1 S. & R. 84; Baum v. Dubois, 7 Wright 260.

When an encumbrance is removed before decree in a bill for rescission, filed by the vendee, the court refuses to rescind: Davidson v. Moss, 5 How. (Miss.) 673; Note to Adams' Eq. 403; Innis v. Campbell, 1 Rawle 373; Townsend v. Champernown, 1 Y. & J. 449; Hampton v. Speckenagle, 9 S. & R. 212.

When it is apparent that plaintiff could not pay the purchase-money, no tender is necessary: Cooper v. Brown, 2 McLean 500; Hampton v. Speckenagle, 9 S. & R. 212; Hebpauch v. Auld, 5 Cranch 252; Cooper v. Brown, 2 McLean 455.

The opinion of the court was delivered, February 9th 1871 by THOMPSON, C. J.

If essential elements, indispensible to a plaintiff's right of recovery appear to be wanting in his case, when he has given his evidence, the court commits no error in granting a nonsuit, either on motion, or of its own accord. That is what was done in this case, and this, and the refusal to take it off, constitute the supposed error of the case. We have very carefully examined the testimony given by the plaintiffs below, and have not been able to discover the error complained of. The plaintiffs were bound by their articles of agreement with the defendant below, to pay the balance of the purchase-money for the property, which is the subject of this dispute, "in sixty days from the date of the articles (the 4th of February 1865), with interest on the whole amount from the 29th December 1864, or as soon thereafter as the deed and title-papers shall be perfected and tendered." No money was paid or demanded at the end of the sixty days, nor was a deed tendered by the vendor. That period having passed, the time for performance by the parties became indefinite, but mutual and dependent whenever it should occur. In this category, whichever of the parties first desired to enforce performance was bound to regard his part of the contract as a condition precedent, and perform or offer performance in order to enable him to proceed to enforce the contract: 1 Wright 135; 2 W. & S. 227; 1 Casey 354; 4 Id. 294; 3 W. & S. 300; 4 Id. 527.

The exception to this rule, if exception it be, is where the vendor proceeds on his legal title; there a tender is not necessary. But a conveyance will be provided for in the conditional verdict, if plaintiff recovers. The vendee must tender the unpaid purchase-money, as a general thing, whether he wishes to rescind or enforce the agreement. This results from the principle that a party himself in default, has no right to insist on rescission while in default: 2 Pars. on Con. 5th ed. 679. In the case in hand, the balance of the purchase-money, $20,000, was never paid or tendered by the plaintiffs at all, nor a deed demanded from the defendant, or notice of a determination to rescind the contract given for over three years after performance was by the articles of agreement to have taken place. In this condition of things and without reference to performance on their part, the plaintiffs brought this suit to rescind the contract, and recover back the purchase-money paid in hand, viz. $20,000.

The claim to rescind seems to be rested on acts of the defendant which the plaintiffs insist do, per se, amount to rescission. When the defendant sold, he retained possession of the premises, with the assent of the vendees, as we may infer from the fact that they made no demand of it at any time. Indeed, the law is, where the contract is silent on the subject of possession, the...