232 Pa. 625 | Pa. | 1911
Opinion by
There is no fact in dispute in this case. By an agreement in writing, dated April 18, 1904, the appellees agreed to sell to the appellant and he agreed' to buy from them a lot of ground in the borough of Connellsville for $5,800. The property was encumbered by a mortgage for $2,100, which he agreed to assume, and the balance of the purchase money was to be paid as follows: $600 cash upon the signing of the agreement, $400 within two weeks, $1,350 in three months and $1,350 in six months, the deferred payments bearing interest. The contract provided that, “on failure of the second party to pay the purchase money, or any part thereof or the interest and taxes as above mentioned, then this agreement to be void, as it regards the the first parties, at their option.” By the terms of the agreement the appellees were authorized to enter judgment against the appellant for the purchase money, and a further provision authorized any attorney to confess
The appellees had two remedies under the agreement for the appellant’s default in paying the purchase money. In affirmance of their contract with him they could have entered judgment against him and enforced payment out of any property which he might have owned, including that which was the subject of the agreement. This they did not do, but, in accordance with the option which they had reserved to themselves in the agreement, they treated it as void, and on November 13, 1906, without giving the appellant notice that no further indulgence in making payment would be granted, and without tendering him a deed and demanding the balance of the purchase money, they entered a judgment m an amicable action of ejectment to recover possession of the property. Upon tMs judgment a writ of habere facias possessionem was duly executed and the appellees were put in possession of the property. The stipulation in the agreement that on the default of the appellant in paying the purchase money, or any part thereof, the appellees might, at their option, treat it as void, gave them the authority to rescind, and their action in summarily repossessing themselves of the property was a rescission of the contract between them: Campbell v. Hickok, 140 Pa. 290; Scott v. Hough, 151 Pa. 630; Seanor v. McLaughlin, 165 Pa. 150. If the appellees elected to treat the agreement as void, as they did, notMng is to be found in it, and nothing was devel
In contending that the entry of judgment against the appellant in the amicable action of ejectment was a complete adjudication of the rights of the parties to the contract, and that he cannot, therefore, recover back what he paid on account of the purchase money, counsel for appellees overlook the plain terms of the agreement signed by them. They had the right, as already observed, to enforce payment of the balance of the purchase money, but they expressly reserved to themselves another right— to treat the agreement as void — with no right, however, if they should so treat it, to keep what the appellant had paid them on it. The rights of each of the parties must be found in the agreement, and, in the absence of anything therein authorizing the appellees to treat as forfeited to them the purchase money which the appellant paid them, and which they accepted from him before they undertook to rescind after they had the right to do so, their claim to retain it is no more favored by the law than in equity. Even if they had resold the property at a loss, they could not have retained out of the moneys paid them by the appellant more than sufficient to reimburse them for the loss sustained.
After directing a verdict for the plaintiff the court entered judgment for the defendants under the Act of April 22, 1905, P. L. 286, and cited Jones v. Scott, 209 Pa. 177, as authority for doing so. A very different question was presented in that case, and it has no bearing upon the question which was before the court below and