10 Watts 387 | Pa. | 1840
The opinion of the court was delivered by
In regard to the first question, it may be observed, that in England it seems to be well settled, if the agreement be signed by one of the parties only, it is sufficient to bind him, because, according to the terms of their statute against frauds, it only requires the writing to be signed by the person to be charged. 1 Sug. Vend. 84, 85, 9th ed. and the authorities there quoted. But our act against frauds is more free, if possible, from all objection of this kind than the English; because our act does not declare the agreement void if not reduced into writing and signed by the parties; nor yet does it declare, as the English statute does, that “no action shall be brought whereby to charge arty
The rule laid down by Sergeant Williams in note 4 to Pordage v. Cole, 1 Saund. 320, and adopted by this court in Edgar v. Boies, 11 Serg. & Rawle 450, and in Stevenson v. Kleppinger, 5 Watts 421, would seem to rule the second question in this case in favour of the plaintiff below. The rule is, if a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen before the thing which is the consideration of the money or other act to be performed, an action may be brought for the money, or for not doing such other act before peformance; for it appears that the party relied on his remedy, and did not intend to make the performance a condition precedent; and so it is where no time is fixed for, the performance of that which is the consideration of the money or other act. Here the payment of the residue of the purchase-money, with the interest thereon, was to precede the making of the deed of conveyance, unless the defendants should elect to have it before, and give to the plaintiff below their bond and a mortgage securing the payment of the residue of the purchase-money, in five years from the date of the agreement of sale, with interest thereon, to be paid semi-annually. Until this election shall be made, the plaintiff be
Judgment affirmed.