44 Pa. Super. 71 | Pa. Super. Ct. | 1910
Opinion by
The parties entered into a written agreement, dated July 20, 1906, under the covenants of which the defendants agreed to sell and convey and the plaintiff agreed to purchase and pay for a certain property situate at No. 2005 Chestnut street, Philadelphia, for the sum of $8,000, subject to a ground rent of $25,000. The covenants required the plaintiff to pay $500 on the signing of the agreement, the balance of $7,500 in cash at the time of settlement which was to be made on or before October 1, 1906, and the ground rent of $25,000 was to remain a charge upon the property. The premises were to be conveyed clear of incumbrance except subject to the ground rent. The covenant of the agreement which it is material in this case to consider was in these words, to wit: “If pur
The appellant contends that the covenant of the agreement above quoted is to be controlled by the words “to liquidate damages”; and that the preposition “to” as here used is to be construed as meaning “in order that they may.” In other words, the appellant asserts that the parties meant to say, in the clause in question: “If purchaser fails to complete purchase the $500.00 paid on account is to be kept by sellers, in order that they may liquidate damages.” He asserts that the $500 was to be retained by the sellers to liquidate the damages, if there were any. “If the damages were less than $500.00 the implication was that the balance would go back to the buyer. If the damages amounted to the full deposit, the whole $500.00 was to be retained to pay them.” The learned counsel for appellant refrained, with commendable caution, from stating what would have been the result, under this covenant, if the damages had exceeded $500. Had this covenant been entirely omitted from the agree
Whether the sum mentioned in the agreement to be
The intention of the parties as gathered from their written agreement was that the defendants should retain the small cash payment which they had received in case the plaintiff failed to complete the purchase. This con
The plaintiff’s own testimony shows that without any legal or other excuse he failed to comply with his part of the contract. The burden was upon him to establish a right to recover. He was bound to show that he had performed his part of the contract by paying or tendering payment of the full purchase money; or that he had some legal excuse for failing to pay or tendering. This was not an action brought by the vendors of land to recover the purchase price, and it was not necessary for the defendants to prove that they had tendered to plaintiff a deed for the property: McCullough v. Boyd, 120 Pa. 552. The plaintiff was not entitled to recover and the learned judge of the court below was entirely right in giving binding instructions in favor of the defendants.
The judgment is affirmed.