Mitchell v. Minnig

• Decision Date: 13 December 1917
• Docket Number: 164-1917
• Parties: Mitchell, Appellant, v. Minnig
• Court: Pennsylvania Superior Court

68 Pa.Super. 306

Mitchell, Appellant, v. Minnig

No. 164-1917

Superior Court of Pennsylvania

December 13, 1917

Argued April 10, 1917 [Syllabus Matter] [Syllabus Matter]

Appeal by plaintiff, from order of C.P. Erie Co.-1916, No. 259 discharging rule for judgment for want of a sufficient affidavit of defense in case of David W. Mitchell v. George W. Minnig.

Assumpsit for hand money.

Rule for judgment for want of a sufficient affidavit of defense.

Whittelsey, J., filed the following opinion:

This was a rule for judgment for want of a sufficient affidavit of defense. The plaintiff avers in his statement of claim that by a certain agreement, a copy of which is thereto attached, the defendant agreed to sell and convey to him a certain piece and parcel of land situated in Millcreek Township, Erie County, Pennsylvania, for the sum of twenty-seven thousand ($ 27,000) dollars, one thousand ($ 1,000) dollars in hand payment, etc. That on the 11th day of May, 1916, in accordance with the agreement, he paid to the defendant the sum of one thousand ($ 1,000) dollars; that among other things in said agreement there was a stipulation that if the first party was unable to give a title satisfactory to Brooks & English, attorneys, the hand payment that he made was to be returned to the second party. That subsequent to the date of the agreement and within the time prescribed thereby, Brooks & English, attorneys, made an examination of the title of said land and informed the defendant that the title was unsatisfactory to them because of certain charges against the said land which were encumbrances upon the same as well as on account of ambiguities in the description of the said land. Wherefore the plaintiff claims that there is justly due and payable to him the hand payment made to the defendant, viz: the sum of one thousand ($ 1,000) dollars, with interest from June 11, 1916.

The defendant avers in the third paragraph of his affidavit of defense that there are no encumbrances on said land except the encumbrances mentioned in the articles of agreement, and that there are no ambiguities in the description of said land, but that said land is accurately described in said agreement; and that the refusal to pass said title by Brooks & English is unreasonable and without foundation; that the title to said land is perfectly good and marketable; and he further avers in a supplemental affidavit of defense that the reason the plaintiff did not consummate the transaction in accordance with the agreement attached to the plaintiff's statement of claim was not that there was any defect in the title or that there was any ambiguity in the description of the land, but because he preferred to purchase another farm elsewhere.

Brooks & English, attorneys, by this agreement were constituted agents of the plaintiff and their rights in the premises could rise no higher than the rights of the plaintiff himself.

We believe that the questions here raised are controlled by Dillinger v. Ogden, 244 Pa. 20, where it is said:

" The vendees were not at liberty to refuse arbitrarily to accept. They could not reject the title capriciously. If it was good, they were bound to take it. Abundant authority is to be found for this position. Thus in Folliard v Wallace, 2 Johns. (N.Y.) 395, the grantee of land covenanted that he would pay the purchase-money to the grantor 'three months after he should be well satisfied that the title was undisputed and good against all other claims.' In an action for the purchase-money, Chief Justice (afterward Chancellor) Kent said, (p. 402) 'Nor will it do for the defendant to say he was not satisfied with his title, without showing some lawful encumbrance or claim existing against it. A simple allegation of dissatisfaction, without some good reason assigned for it, might be a mere pretext, and cannot be regarded. If the defendant were left at liberty to judge for himself when he was satisfied, it would totally destroy the obligation, and the agreement would be absolutely void. . . . The law in this case will determine for the defendant when he ought to be satisfied.' In Moot v. Investment Assn., 157 N.Y. 201, an action for the recovery of purchase-money, Martin, J., said (p. 211): 'But it is said that the language of the contract was that the deed should convey a good and satisfactory title. Much...