Parcell v. Grosser

• Decision Date: 05 October 1885
• Docket Number: 29
• Citation: 109 Pa. 617,1 A. 909
• Parties: Parcell v. Grosser
• Court: Pennsylvania Supreme Court

1 A. 909

109 Pa. 617

Parcell v. Grosser

No. 29

Supreme Court of Pennsylvania

October 5, 1885

April 21, 1885

ERROR to the Court of Common Pleas of Schuylkill county: Of July Term 1884, No. 29.

This was an action of ejectment by Owen Parcell against August Grosser to enforce the collection of a balance of purchase money alleged to be due by Grosser to Parcell on a sale of certain real estate in Schuylkill county.

On the trial, before GREEN, J., it appeared that in March, 1872 Parcell, who was the owner of the said real estate, entered into a written agreement for its sale to Grosser for $2,200 of which $1,000 was then paid. The agreement stipulated that Parcell on or before March 29th, 1874, would convey to Grosser the said premises, and that Grosser would pay the balance of the purchase money in two equal payments of $600 at the expiration of one and two years respectively from the execution of the agreement. The said payments were "declared to be a condition precedent to the execution of the deed or deeds of conveyancing aforesaid by the said Owen Parcell." Grosser at once entered into possession and never received a deed. It was admitted that the $1,200 balance of purchase money was never paid, and this action was brought to enforce its collection.

Defendant offered to prove by parol testimony that at the time he made the contract for the purchase of the lot in question there was a policy of insurance upon the building erected upon this lot for about $1,500; that the policy had some two or more years to run; that in order to secure the purchase money unpaid upon the contract, it was agreed between Parcell and the defendant that Parcell should retain the policy of insurance as collateral security for the payment of the balance of the purchase money, and that Parcell did retain it; that the assessments made by the company upon Parcell after the purchase was made, were paid by the defendant at the request of said Parcell, and in pursuance of the original contract by which he was to retain this policy as security for the purchase money; that the next year after contract was made, the building upon which the insurance was effected burned down, and that the defendant then ascertained for the first time that the company had declared the policy forfeited by reason of neglect of Parcell to return the policy to the company to get its assent to its continuance, together with the further fact that shortly after the transfer, after this contract was made, the company had notified Parcell that they would not agree to his holding the policy as security, and that he neglected and refused to notify defendant of such determination of the company; defendant, in good faith supposed that Parcell had held this policy upon his property as a valid policy, and by reason of that, defendant could not obtain any insurance upon the property, but he learned after the destruction of his property by fire that the company had declared the contract of insurance forfeited. To be followed by evidence that the building upon which this insurance was effected was of more value than the purchase money remaining unpaid.

Objected to by plaintiffs as a parol variance of the written contract of sale of the parties. Objection overruled and testimony admitted. Exception. (First assignment of error.)

The defendant by himself and four other witnesses then produced evidence in support of his offer, which was contradicted by the plaintiff. The court submitted the evidence to the jury charging them that if they found that the failure to realize from the policy of insurance was due to the negligence of the plaintiff in failing to comply with its conditions, in that event their verdict should be for defendant, aliter, for the plaintiff.

Verdict for defendant and judgment thereon. The plaintiff thereupon took this writ of error, assigning for error the admission of the testimony ut supra, and the instructions of the court.

Judgment affirmed.

James Ryon and David A. Jones for the plaintiff in error.

John W. Ryon, (with him William A. Marr), for the defendant in error.

Before MERCUR, C.J., GORDON, PAXSON, TRUNKEY, STERRETT and CLARK, JJ. GREEN, J., absent.

OPINION

Mr. STERRETT, Justice.

If it were not for the alleged parol agreement in relation to the insurance on buildings, effected by plaintiff prior to the contract of sale, he would undoubtedly have been entitled to a verdict for the premises described in the writ to be released on payment of the residue of purchase money, $1,200 and interest, within such time as the jury might have considered reasonable. As to the terms of the written contract of March 30th, 1872, there is of course no dispute. Plaintiff covenanted therein to sell and convey the premises in...