93 Pa. 443 | Pa. | 1880
delivered the opinion of the court, May 3d 1880.
Roth testifies: “ I made an agreement with Naftzinger in the spring of 1871. He said he was old; could no longer work; I should move, to his property; build house, barn and blacksmith-shop ; he wanted to live on the premises, and if I lived longer than he, I should have the property; he said he must live on the land, but if we could not live together and were quarrelsome, he would move away, and I must pay him the interest of §1500 as long as he lived. This was the agreement, and upon this I built. * * * He had reserved for him a room in the new house. Under this agreement I built on the premises, and I wanted to give him the board right away ; he did not take it long.” According to his testimony, he put up buildings and made improvements at a total cost of §3000 ; he commenced building in the spring of 1872 ; still has possession and has had the income to his own use ; after his house
Naftzinger’s testimony differs materially as to the consideration, he saying, that the $1500 were to be paid when he should require. Neither says they agreed as to writings, both say they were talked of — both agree that Roth should have the property, if he survived, but whether Naftzinger was to secure it to him by deed or will is as uncertain in the proofs as in the pleadings.
The plaintiff, being in the enjoyment of all that came within the contract, as he stated it, abandoned his claim for damages merely, and set up a claim for specific performance to be enforced by a conditional verdict and judgment. He has as little right to maintain this suit for specific execution of the contract, without showing precisely what the contract was, his own performance, and breach by defendant, as to recover the value of improvements of which he has not been dispossessed. In this state there is no doubt, that in a proper case, the rights of the parties under a parol contract for sale of land, may be settled in assumpsit; but the plaintiff must show that his right of action had accrued before its commencement. A defendant, sued by the holder of the legal title, may plead his equity to defeat recovery, or to secure a condition to the recovery, though not in position to maintain suit himself. Roth has a heavier burden than he would have, if sued by Naftzinger for recovery of the land.
The learned judge of the Common Pleas says, “ When this case was on trial, we were considerably perplexed about it. It was evident to us, that the parties to this suit had got themselves into a condition by their contract relations, which they hardly understood themselves at any time, and by which, after an attempt to execute it, they only got into a worse state of understanding, in fact into actual misunderstanding. From the demeanor of the parties towards each other, one would really have supposed that there was no comprehensible contract relations between the parties.” Such was the chancellor’s first impression of the case. Reflection and the verdict changed his views of the character of the evidence. Whether it was sufficient to warrant a decree for specific execution of the contract, we shall not consider; for we are of opinion, that it should clearly appear that the plaintiff had performed or offered performance on his part, before bringing suit in assumpsit, in order
Judgment reversed.
