200 A. 62 | Pa. | 1938
Plaintiffs' bill for specific performance of a contract to convey land was dismissed on preliminary objections, based (1) on "lack of mutuality of both obligation and remedy between the parties" and (2) absence of tender of performance. The learned judge said the case "falls squarely within the facts in the case of Elder v. Robinson,
The bill avers that on April 1, 1935, one of defendants, Fort Penn Realty Company, owner of certain property, leased it to plaintiffs for the term of five years at one hundred and fifty dollars per month. By one of the provisions of the lease, the lessor granted the following right to the lessees: "Further, in consideration of the *316 covenants of this leasehold, mutually granted, the lessor does further grant to the lessees an option to purchase the entire building and lot of which the said premises are comprised, at a price to be mutually agreed upon between the parties hereto; said option to purchase to exist during the term of this leasehold; provided, however, that in the event lessor receives any other bona fide offer to purchase during the term of this option, in such event the lessees must exercise their option to purchase at or in excess of the sum named or agreed upon under such other bona fide offer, within fifteen days of notice in writing thereof from the said lessor, and in the event of failure to exercise said option after fifteen days' notice as aforesaid, then this option purchase herein granted to the lessees shall terminate and be void." Having received consideration for the offer, the lessor could not withdraw it; if the lessees accepted the offer the lessor was bound to sell.
The bill averred that on April 14, 1937, a deed for the property from defendant Fort Penn Realty Company to another defendant, Stroudsburg Security Trust Company, was put on record and that on April 20, 1937, the Stroudsburg Security Trust Company conveyed it to defendant Newberry; that both had knowledge, prior to the conveyances, of plaintiffs' lease and option; that defendant Fort Penn Realty Company never notified plaintiffs "of any bona fide offer of purchase for the leased premises made by the [trust company]," or of the sale to Newberry. Plaintiffs aver that these conveyances1 were "in fraud of [their] rights . . . under the terms of the lease agreement and option"; that since entering upon the leasehold "they have operated a produce *317 market . . . have spent large sums of money adapting said premises to that business, and have built up a valuable and profitable business"; that the property is "particularly valuable to them, being situate at the most desirable corner on Main Street . . . and that they are unable to buy any other property as suitable for said business"; that "no damages at law can adequately compensate them for the breach of said contract. . . ."
1. The period of the option was the term of the lease, but that period was reduced to 15 days if the lessor sooner found a purchaser and gave notice. For present purposes the provision dealing with price may be considered in two aspects: (1) a price to be agreed upon by the parties, and (2) the sum at which lessor agreed to sell to another — "the sum named or agreed upon under such other bona fide offer." As, under clause 1, they might never agree, the terms of that portion of the lessor's offer are too vague and indefinite to support a decree of specific performance: see Elder v. Robinson,
We are now dealing only with particular averments that were considered inadequate by the learned court below to require an answer by defendants. What may appear by answer, or at the trial, is not before us, it may be, as suggested in argument, that defendants have a complete defense; on the present record, we are constrained to think that the decree dismissing the bill was premature. In support of his preliminary objections, the learned counsel for appellees said: "The all-important element of purchase price is missing. It is elementary that there must be a fixed valid consideration for the transfer of real property before there is a specifically enforcible contract. . . ." It is plain from what has been said that the argument must fail because the contract specified a method of making certain what the price should be, and, in accord with that provision, the bill avers that a price was agreed upon and became the consideration for the sale by the lessor-defendant to another defendant with notice of the option and without *319
opportunity to plaintiffs to accept the offer. Having definitely stated the contingency which should fix the price, the parties may not ignore the fact determined in the manner agreed to. It has been held that specific performance may be granted at the suit of an optionee: Corson v. Mulvany,
2. The second objection was absence of tender of performance. The averment relating to tender is in these words: "10. That the plaintiffs are ready and willing to purchase said premises and pay therefor the same price paid by the Stroudsburg Security Trust Company." Obviously the averment might have been more precise, but we do not understand that the bill was dismissed on that ground.
On this branch of the case appellants, conceding that he who seeks equity must do equity, contend that defendants' conduct made unnecessary tender of the price, for the purpose of putting defendant in default, because the lessor's conveyance to the Trust Company was a denial of plaintiffs' rights; this view is supported by our decisions: Atlas Portland Cement Co.v. American Brick and Clay Co.,
There is no merit in appellees' point that no exception was taken to the final decree: see Equity Rule 72.
Decree reversed, bill reinstated, record remitted for further proceedings, costs to abide final decree.
