Appeal, No. 198 | Pa. | Feb 14, 1921
Opinion by
The plaintiff entered into a written contract by which he agreed to purchase certain real estate from the de
No tender of performance was made within the period fixed, and it was not until some days thereafter that the vendee indicated an intention to carry out the contract. The defendants refused to convey, upon demand, and the plaintiff filed his bill asking for specific performance, insisting that there had been a waiver of the necessity for compliance on September 27th, by the acts of one of the defendants, who was likewise agent for the other; answers were filed, and subsequently a hearing was had.
From the testimony received, findings of fact were made by the court below, wherein it concluded that time was of the essence of the contract, and that there were no facts showing any extension of the date of performance beyond that finally fixed, namely, September 27th. Specific performance was, therefore, refused, and from the decree entered this appeal was taken by the plaintiff.
Many of the thirty-two assignments of error are directed to the findings of fact, which are fully sustained by the evidence; and, under the recognized rule, that the findings of a chancellor, based upon sufficient evidence, will not be reversed, in the absence of clear error,
The contention that the delay in settlement was caused by the failure to secure proper certificates of search is not sustained by the testimony. It appears by the agreement that a particular title company was named as the one to which the application for such certificates should be made — that corporation having already insured the title — and, as far as the evidence shows, the appellant made no effort to secure them from it. The testimony further discloses the fact that the vendors were in a position to make title, as provided in the agreement, and that the failure to perform on September 27th was solely due to appellant. No sufficient evidence was offered to justify a finding that there was any parol waiver of the time of performance by the defendant Redding. Even had there been, the other defendant, Montgomery, would not have been bound thereby, in the absence of some proof of Redding’s authority to act, in this regard, on his behalf. The authority of an agent to sell embraces no authority to modify the contract to sell after it is made: 2 C. J. 617.
Several errors are assigned to the conclusions of law reached by the court. It is averred that, under the circumstances here presented, time was not of the essence of the contract. That it was made so by the agreement itself cannot be questioned, and under the terms of the writing the period for compliance was definitely limited: Doughty v. Cooney, 266 Pa. 337" court="Pa." date_filed="1920-02-02" href="https://app.midpage.ai/document/doughty-v-cooney-6254680?utm_source=webapp" opinion_id="6254680">266 Pa. 337. It is, however, argued that the making of extensions on two separate occasions alters the situation. In each instance a definite though later date for settlement was fixed, and the final limit was placed at September 27th. The granting of such forbearance surely cannot alter the situation when a definite period was determined upon by agreement of the parties: Patchin v. Lamborn, 31 Pa. 314" court="Pa." date_filed="1858-07-01" href="https://app.midpage.ai/document/patchin-v-lamborn-6230661?utm_source=webapp" opinion_id="6230661">31 Pa. 314; Reed v. Breeden, 61 Pa. 460" court="Pa." date_filed="1869-03-26" href="https://app.midpage.ai/document/reed-v-breeden-6233550?utm_source=webapp" opinion_id="6233550">61 Pa. 460. Nor is there force in the contention that there was a failure on the part of the defend
Again, it is insisted that the money paid as a deposit at the time of making the original agreement was to be „ treated as liquidated damages, and that the further sums paid for the purpose of securing extensions of time of performance were merely deposits. It is, therefore, argued that the defendants had no right to refuse performance of the contract or to rescind, unless there was a repayment to appellant of the amount so received. The principle invoked is that, in case of rescission of a contract, the one so acting must place the other in statu quo before asking for relief. This is true as an abstract legal proposition (Bird’s App., 91 Pa. 68" court="Pa." date_filed="1879-06-23" href="https://app.midpage.ai/document/birds-appeal-6236215?utm_source=webapp" opinion_id="6236215">91 Pa. 68; Nulton’s App., 103 Pa. 286" court="Pa." date_filed="1883-05-07" href="https://app.midpage.ai/document/nultons-appeal-6237455?utm_source=webapp" opinion_id="6237455">103 Pa. 286), but, apparently, sight has been lost of the fact that the present proceeding is a bill by the proposed vendee asking for specific performance, and not an action by the defendants to enforce a rescission of the contract made. “Courts of -equity are governed by different rules in determining whether a contract should be specifically enforced and in deciding whether it should be cancelled. In determining that a contract should be rescinded the court in effect decides that it should not be enforced either in equity or at law, but in refusing specific performance of a contract the decision is limited to the question of its enforceability in equity, leaving open the inquiry as to its binding effect at law”: 25 R. C. L. 205. If Redding and Montgomery were asking an equity court for relief from the contract, on proper grounds, then the principle invoked would have application; but that is not the case here.
It is further insisted that the deposits referred to should have been directed by the court below to be
An examination of the assignments of error, in view of the record as presented, shows them to be without merit, and they are overruled.
The decree of the court below is affirmed; the costs of this appeal to be paid by the appellant.