14 Pa. 308 | Pa. | 1850
The opinion of the court was delivered, by
— The defendant below offered to prove that, after making the article of agreement given in evidence by the plaintiff, and before the defendant took possession, a parol agreement was made between the parties to rescind it, and that Anderson then admitted that he could not make title, to be followed by proof that, after the recision, another parol agreement was made between the parties, under which Espy took possession. The court below rejected this evidence, which is assigned for the first error. In equity, a written agreement may be rescinded by parol; a court of chancery will oftentimes refuse to decree a specific performance of an agreement, which, nevertheless, it will not declare rescinded; and a specific performance will be decreed upon the application of one party, when the court would refuse to act upon the application of the other. The intervention of the court can only be successfully invoked by the special circumstances of the whole case, from which the preponderating justice, on the one side or the other, is established. The action, therefore, of a court of chancery, as to such matters, is essentially dependent on discretion; not of a capricious discretion, but of sound judicial volition, according to the principles of equity. But in order to rescind a contract, under such circumstances, both parties must place themselves in the same situation that they occupied before the contract was made, so that neither can have or take advantage of the other: and that was not offered to be proved in this case. The agreement was not cancelled or delivered up; the fifty-five dollars paid on the 11th of December, 1847, was not refunded, nor was it proposed to show that any act was done in pursuance of the alleged rescisión. It was then a mere naked or voluntary agreement, unexecuted, and without consideration, and, therefore, not regarded in equity as of any moment whatever. But the agreement was not considered rescinded by either party, as was fully manifested by the subsequent evidence in the cause; and, therefore, as the rejection of the proposed evidence
The second error assigned is not sustained.' The testimony was direct and positive, that the only judgment remaining open on the docket was actually paid. This was quite sufficient, for it put the defendant into the knowledge and possession of evidence by which he might compel the plaintiff to enter satisfaction; and if that was not sufficient security for him, he might have retained so much of the purchase money as would have discharged it, until Anderson had procured satisfaction to' be entered; or he might have tendered to the plaintiff in the judgment, the amount, and retained it out of the purchase money, if it had not been paid.' But this error assigned is only a make-weight, for the entry on the docket is, all costs paid, and $9 of the debt: and the plaintiff in the judgment, Heath, testified that this $9 was the balance of the judgment due at the time the entry was made, which was before the tender of the deed, the rest having been paid at a previous time. But if there had been encumbrances, all that the plaintiff was bound to do was to satisfy the jury that he was able to discharge them, if the defendant had been willing to accept a deed: Hampton v. Specknagle, 9 Ser. & R. 212, and Cassel v. Cooke, 8 id. 268.
In relation to the third error assigned, I have to observe that it is not necessary to tender the whole chain of title at the time the vendor tenders a deed to the vendee. In many cases this would
As to the fourth error assigned, it is of no account. A good cause of action is set out in the narr.
Judgment affirmed.