Schermer v. Wilmart

• Decision Date: 05 January 1925
• Docket Number: 20
• Citation: 127 A. 315,282 Pa. 55
• Parties: Schermer v. Wilmart, Appellant
• Court: Pennsylvania Supreme Court

127 A. 315

282 Pa. 55

Schermer v. Wilmart, Appellant

No. 20

Supreme Court of Pennsylvania

January 5, 1925

Argued November 28, 1924

Appeal, No. 20, Jan. T., 1925, by defendant, from decree of C.P. No. 4, Phila. Co., March T., 1923, No. 2369, on bill in equity, in case of David Schermer v. J. M. Wilmart. Affirmed.

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

The opinion of the Supreme Court states the facts.

Decree for plaintiff. Defendant appealed.

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

The decree of the court below is affirmed and the appeal is dismissed at the cost of appellant.

Roland R. Foulke, for appellant. -- Specific performance was improperly decreed: O'Connell v. Cease, 267 Pa 288; Piersol v. Neill, 63 Pa. 420; Cortelyou's App., 102 Pa. 576; Dalzell v. Crawford, 1 Parsons Eq. 37; Pennock v. Freeman, 1 Watts 401; Reilly v. Gautschi, 174 Pa. 80; Zimmerman v Rhoads, 226 Pa. 174; Wistar's App., 80 Pa. 484; McKee v. Harris, 16 Phila. 149; Gorsuch v. Berman, 270 Pa. 8.

Charles J. Weiss, with him Harry Goodfriend, for appellee. -- All terms essential to a valid agreement for the sale of land were settled upon by the parties to this cause, and set forth in the receipt signed by defendant. That writing identifies the parties to the contract: Flanigan v. Phila., 51 Pa. 491; Shattuck v. Cunningham, 166 Pa. 368; Fitzpatrick v. Engard, 4 Dist. R. 383.

It is unimportant that Mr. Wilmart's receipt fails to specify what estate in his Powelton Avenue property was to be conveyed to Mr. Schermer and that it was to be conveyed clear of encumbrances: Swayne v. Lyon, 67 Pa. 436; Withers v. Baird, 7 Watts 227; Nichol v. Carr, 35 Pa. 381; Hannan v. Carroll, 277 Pa. 32.

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

OPINION

MR. JUSTICE SIMPSON:

Defendant appeals from a decree of the court below, awarding specific performance of the contract detailed in the following receipt:

"February 9th, 1923

"Received from D. Schermer the sum of $40. on a/c of the purchase price of property 3711 Powelton Av. the full consideration of selling price of the above property is $8750., a further deposit of $210. to be paid on the 12th day of February 1923. Possession of the property to be given on or before June 8th, 1923, at which time final settlement is to be made.

"A regular agreement of sale for the selling of the above mentioned property to be made on the day the additional $210. are paid.

"J. M. Wilmart"

We decided in Sylvester v. Born, 132 Pa. 467, that we would decree specific performance of an agreement thus evidenced, if all the essential terms are set forth in the paper; because, in that event, not only is a meeting of the minds shown, but also everything required by the statute of frauds appears in the written evidence of the contract: Briggs v. Logan Iron & Steel Co., 276 Pa. 326. The mere fact that the receipt contemplated a more formal document to be drawn in the future, does not alone defeat the right. On the general subject the rule is well stated in 13 Corpus Juris 290, as follows: "An agreement to make and execute a certain written agreement, the terms of which are mutually understood and agreed on, is in all respects as valid and obligatory as the written contract itself would be if executed. If, therefore, it appears that the minds of the parties have met, that a proposition for a contract has been made by one party and accepted by the other, that the terms of this contract are in all respects definitely understood and agreed on, and that a part of the mutual understanding is that a written contract embodying these terms shall be drawn and executed by the respective parties, this is an obligatory agreement which dates from the making of the oral agreement." To the same effect is Smith v. Kaufman, 30 Pa.Super. 265, and Park v. Kansas City Southern Ry. Co., 58 Pa.Super. 419. On the issue of fact regarding the binding effect of the contract in the receipt, the court below found, on ample evidence, that "both parties to the agreement regarded themselves bound by it from the moment that the $40 and the receipt therefor were exchanged."

Accordingly our single question is: Does the receipt fully set forth all essential provisions? Appellant says it does not, for the following reasons: (1) Because nothing is said as to whether or not the purchaser is to take the perpetual fire insurance policies on the property, if any. The evidence does not disclose any, but, if there are, it is a matter of no moment, since such policies are not part of the real estate. (2) Because the receipt does not provide whether or not fixtures are included in the sale. If there are any, -- on which point the evidence is silent, -- and they form part of the real estate, they are, of course, included in the sale; otherwise they are not. (3) Because the receipt does not provide who shall pay for the internal revenue stamps required to be put on the deed. The Act of Congress of November 23, 1921, ch. 136, section 1102, (42 Stat. at L. 302) makes it a criminal offense for any one to sign a deed "without the full amount of the tax thereon being duly paid"; hence, as...