226 Pa. 287 | Pa. | 1910
Opinion by
This was a bill in equity filed by Frederick G. Bannerot against H. M. Davidson and Samuel Holmes, praying for an injunction to restrain the defendants from excavating and
From the findings of facts by the trial judge, it appears that Bannerot, Davidson and Naylor owned three adjoining lots of ground in Allegheny, extending along Perrysville avenue from Richey avenue to Dunlap street. Upon October 16,1905, for their mutual advantage, they agreed in writing to create a private alley, or right of way, eight feet wide, across the extreme end of said lots, extending from Richey avenue to Dunlap street, for the purpose of affording access to all three of the lots from the rear. They also agreed, in case of sale by any of them to convey the property subject to the terms of this agreement. For some reason best known to themselves they further stipulated that the written agreement should not be recorded for a period of two years from its date; and it was not recorded. Afterwards Naylor sold his lot to H. M. Lindsay, without giving him notice of the agreement for the creation of the right of way above referred to, and Lindsay consequently refused to be bound by it or to recognize its terms, so that it became impossible to open the right of way extending through at the rear of the three lots from street to street, as had been provided for in the contract between the original parties.
On July 19, 1907, Davidson, the defendant here, served upon plaintiff, Naylor and Lindsay, a written notice requiring them to open the foadway or easement eight feet wide, provided for in the agreement, extending from Richey avenue to Dunlap street, and also to build the retaining wall referred to therein, and further notifying them that in case of their failure to do so within ten days from the date of the notice, he would construct the retaining wall at his own expense, and close the roadway over his lot, and would consider the agreement null and void. No action was taken, in response to this notice, and
From August 15, 1907, until September 5, 1907, the defendant and plaintiff were neighbors, residing on their adjoining lots, the properties involved in this suit, the work upon the stable proceeding from day to day from the time it was commenced until its completion. Plaintiff was aware of the building being constructed, and on September 5, 1907, when the brick walls were almost ready to have placed thereon the ceiling joists, filed the bill in this case and made application for a restraining order, defendant at that time having obligated himself to contractors for the expenditure of about 11,400 in and about the erection and construction of the stable, plaintiff making no objection or protest against the building until the bill in this case was filed.
Plaintiff’s contention is, that defendant by the erection of the stable referred to, is violating the provisions of the agreement of October 16, 1905, and depriving him of the right of way provided for therein. Defendant’s contention is, that the agreement was rendered void, first, in the conveyance by Naylor and wife to Lindsay'which deprived defendant' of the use of that portion of the right of way intended to afford him access to Dunlap street; and, second, because of the failure of plaintiff and Naylor to construct the retaining wall along the property of Mrs. McCall, as provided for in the agreement.
In his conclusion of law, the learned trial judge points out that the agreement to provide the right of way might have been made binding upon purchasers as well as upon the parties, had the paper been recorded; that presumably the advantage of access to all the properties from either street was one of the controlling reasons for the agreement; and that, as the case now stands, the agreement cannot be carried out as a whole. His final conclusion is, “As the whole scheme contemplated by the parties to the agreement of October 16,1905, cannot be carried out by reason of the failure by one of the
The rule is so reasonable and just, that no extended quotation of authority to sustain it need be made. Where there has been a failure, or a partial failure of the consideration for a contract, a court of equity ought pot to compel specific performance of a part of the contract, for this would be to require the performance of something not agreed upon by the parties. A contract cannot properly be enforced by piecemeal. The only consideration moving to Davidson in this matter was the advantage of access to his property from the rear, and in driving through from street to street. When the possibility of that means of access was destroyed by one of the parties, in the sale of his lot without giving notice of the agreement to the purchaser, the consideration for the contract wholly failed, in so far as Davidson was concerned, and it would be an injustice to enforce the opening of the right of way over his lot, when it could not be opened from street to street. The agreement made by the parties was not for a right of way, or easement, over one lot, or over two lots, but it was for a right of way over the three lots, as a complete thing, and for the specific purpose of permitting passage from street to street, and in either direction. It may be further suggested that this agreement could hardly have been intended by the parties to have certain and lasting effect from its date, for they voluntarily
We think that a court of equity should not now interfere in this case; in favor of one of the parties, since it is not possible to do justice to the other party, by enforcing the entire contract according to its terms. Under this view of the case, it becomes unnecessary to consider whether or not the plaintiff was guilty of such lachps as would prevent him from invoking the aid of equity.
The decree of the court below dismissing the bill is affirmed, and this appeal is dismissed at the cost of the appellant.
