Ruff's Appeal

• Decision Date: 24 October 1887
• Citation: 117 Pa. 310
• Parties: APPEAL OF B. F. RUFF.
• Court: Pennsylvania Supreme Court

117 Pa. 310

APPEAL OF B. F. RUFF.

Supreme Court of Pennsylvania.

Argued October 4, 1887.

Decided October 24, 1887.

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

FROM THE DECREE OF THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY, IN EQUITY.

No. 56 October Term 1887, Sup. Ct.; court below, No. 102 in Equity 1882.

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Mr. Paul H. Gaither and Mr. H. P. Laird (with them Mr. J. A. Marchand and Mr. John B. Keenan), for the appellant:

1. The specific performance of a contract will not be decreed unless its terms are clear and capable of ascertainment from the instrument itself: Story Eq. J., § 767; Hammer v. McEldowney, 46 Pa. 334; or, where the evidence is in any degree uncertain, Fussell v. Rhodes, 2 Phila. 165. The evidence must be clear, precise and indubitable; the witnesses must distinctly remember the facts to which they testify; they must relate the details exactly: Phillips v. Meily, 106 Pa. 536; Thomas v. Loose, 114 Pa. 35; Cullmans v. Lindsay, 114 Pa. 166; Callen v. Ferguson, 29 Pa. 247; Churcher v. Guernsey, 39 Pa. 84; Du Bois v. Baum, 46 Pa. 537; Miller v. Henlan, 51 Pa. 265; Cadwalader's App., 57 Pa. 158; Russell v. Baughman, 94 Pa. 400; Dohnert's App., 64 Pa. 311; Bodine v. Glading, 21 Pa. 50; Meason v. Kaine, 63 Pa. 335; Dorman's Est., 20 W. N. 522; Pattison v. Martz, 8 W. 374, 379.

2. The defendant had a legal right to interpose the bar of the statute of limitations and of the act of congress in any stage of the proceedings before final judgment: § 6, act of March 21, 1806, 4 Sm. L. 329; Young v. Commonwealth, 6 Binn. 88; Franklin v. Mackey, 16 S. & R. 117. A party may amend as often as necessary: Hamilton v. Hamilton, 18 Pa. 20; Neely's App., 85 Pa. 387; Barnholt v. Ulrich, 11 W. N. 51. The statute need not be pleaded in equity after great laches: Smith v. Clay, Amb. 645; 2 Story Eq. J. 1520; Boone v. Childs, 10 Pet. 177. § 5057 Rev. St. U. S. was an absolute bar to the action: Upton v. McGlaughlin, 15 Otto 640; Retzer v. Wood, 109 U. S. 185; Bailey's Ass. v. Glover, 21 Wall. 637; Rosenthal v. Walker's Ass., 111 U. S. 395; Gifford v. Helms, 8 Otto 248.

Mr. James S. Moorhead (with him Mr. John B. Head), for the appellee:

1. The subject-matter, the land, being described, evidence is admissible to apply the description to the land, and this contract is not within the statute of frauds: Ferguson v. Staver, 33 Pa. 411; Smith & Fleck's App., 69 Pa. 474; Ross v. Baker, 72 Pa. 186; Evans v. Prothero, 13 Eng. L. & Eq. 163. The phraseology of the contract fills the measure of the decisions of this court.

2. As to § 5057 Rev. St. U. S.: (1) The respondent was too late in availing himself of this plea: Everhart's App., 106 Pa. 349; Upton v. McGlaughlin, 15 Otto 640. (2) It is not applicable to an express trust, and therefore cannot be pleaded herein: Banks v. Ogden, 2 Wall. 57; Seymour v. Freer, 8 Wall. 202; Boone v. Childs, 10 Pet. 177; Rush v. Barr, 1 W. 110; Fox v. Cash, 11 Pa. 207. We submit that until actual notice by Ruff to Dillinger, or his assignee, or such acts of adverse ownership as are equivalent to actual notice of a denial of the latter's title, the former will be taken to hold under the contract and not against it.

3. On the question of laches arising from the lapse of time, we cite McGlaughlin v. Shields, 12 Pa. 283, 290. All of the cases where lapse of time and change of circumstances induced the chancellor to refuse a decree of specific performance, were cases where the complainant had not performed his contract at all, or had only performed it in part and to a limited extent: Cadwalader's App., 57 Pa. 158; Miller v. Henlan, 51 Pa. 265; Du Bois v. Baum, 46 Pa. 537; Dohnert's App., 64 Pa. 311.

OPINION, MR. JUSTICE WILLIAMS:

The contract, the specific execution of which is sought by this bill, was made on the 6th February, 1872. It provided for the sale by Ruff to J. L. Dillinger of the one tenth part of about one thousand acres of land and coal privileges of which Ruff was part owner, in Derry township and the valley of the Big Sewickley in Westmoreland county, for ten thousand dollars. Of the purchase money, one half was to be paid in notes at ninety days and four months, "and the balance in two equal annual payments from the first day of March, 1872." The notes for the first payment were given and have been paid. The other payments have not been made, but Dillinger neglected and declined to make them, alleging in substance that there was not enough of value in the purchase to justify it. Four years after the last payment fell due, Dillinger became a bankrupt and in 1880 obtained an absolute discharge from all debts which he owed on the 17th April, 1878, which included the one half of the purchase money due on this contract and the interest thereon. The assignee in bankruptcy some four years after his appointment filed this bill, asking specific execution of the contract of 1872 in accordance with his version of it. The defendant below sought to avail himself of the protection provided by the act of congress of 2d March, 1867, which declares that "no suit at law or in equity shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee."

The court was of opinion that the defendant was not entitled to the benefit of this act without setting it up specially in his answer as a bar to the plaintiff's action. The defendant then asked leave to amend his answer by incorporating into it a paragraph for this purpose, but leave was not granted. In this the court erred. The act of congress is a proper and adequate reply to the plaintiff's bill, and unless he can relieve himself from its operations by showing such circumstances as will prevent its application to him, it is a conclusive one. This we understand to be the rule as laid down in the cases cited.

But we are not disposed to put our disposition of this case upon the act of congress alone. After a careful examination of the contract, the report of the master and the evidence, we are satisfied that the case presented is not one that entitles the plaintiff to the...