254 Pa. 308 | Pa. | 1916
Opinion by
In this action of assumpsit the plaintiff sought to recover, first, the sum of $5,000.00 paid as hand money, on the purchase-price of a certain property which defendant in breach of his covenant refused to convey, and, second, the sum of $5,000.00 which the parties had stipulated should be the amount of the liquidated damages for the breach of the contract. It appears that on September 5, 1913, George G. Greiner and his wife executed an agreement under seal by which they covenanted to sell and convey certain premises to Orr and his assigns for the sum of $50,000, and that they received at that time $5,000 on account of the purchase-price of the property, the remainder to be paid upon the execution and delivery of the deed, on January 1, 1914. Included in the description of the property to be conveyed there was a provision that the eastern line should be “at least three feet distant from any building erected upon the plot hereby sold.” There was also the following covenant: “And for the true performance of all and every the covenants and agreements aforesaid, each of the said parties binds himself, his heirs, executors and administrators and assigns, unto the other, his exécutors, administrators and assigns, firmly by these presents in the sum of five thousand ($5,000) dollars, lawful money of the United States, as assessed and liquidated damage to be paid by the party delinquent to the party observ
At the trial it appeared that the defendant had absolutely ref used, to include in the deed of conveyance the strip of ground three feet in width lying along the east side of the building, as required by the agreement of sale, claiming that he had not understood that it was to be a part of the premises to be conveyed; and the use-plaintiff thereupon refused to accept the deed, and said: “The deal is off.” The defendant thereupon had another deed drawn up with an irregular easterly line, containing nine courses and distances following the lines of the buildings and being three feet distant therefrom. On January 3,1914, this deed was offered to the use-plaintiff Moyer, who refused to accept it, as not being in accordance with the contract. There was considerable testimony to shoAV that Moyer was ready and willing to perform his part of the contract on January 1, 1914, the date fixed for the mutual performance of the dependent covenants to convey and to receive the property and pay therefor. In his charge to the jury, the court left to them the questions whether the defendant had committed a breach of the contract, whether the use-plaintiff was ready and willing to perform, and whether he had rescinded the agreement; and charged that if they found these facts in favor of the plaintiff, he would be entitled to recover for both items declared on, the $5,000.00 consideration paid, and the $5,000.00 liquidated damages, or a total of $10,000 with interest from January 1,1914. The jury brought in a verdict for the plaintiff in the sum of $10,460. Subsequently the court entered judgment on the verdict for the sum of $5,230.00 based, as we understand his opinion, on the amount of the consideration money paid. For the remainder of the verdict, being for the amount claimed as liquidated damages, judgment non obstante veredicto was entered for defendant. Whether the suit was in affirmance or disaffirmance of the contract, the measure of damages to be applied would
An examination of the statement of claim filed by plaintiff shows two counts, one for the recovery of the consideration money, and the other for the liquidated damages. In the one count the claim was in affirmance, in the other it was in disaffirmance of the contract. Such counts could not properly be combined unless the covenant for the payment of liquidated damages was distinct from, and independent of, the covenant to convey. If it could fairly be regarded as an independent, or secondary agreement, it would fall within the principle for which the decision in Mathews v. Sharp, 99 Pa. 560, stands, in which there was a contract to convey land, and the sum of $500 was paid down, which the vendor was to hold as a forfeit, in case the purchaser failed to comply with the agreement. On his part the vendor covenanted to return the $500 in case he failed to carry out the contract, and also to forfeit a further sum of $500 to the purchaser. It was held that the clause was to be construed as providing for liquidated damages, and not for a penalty, and that Mathews having failed to convey the property to Sharpe was bound not only to refund the $500 deposited with him, but to pay the $500 additional., Trunkey, J., said (p. 564) after reciting the facts: “It is impossible to misunderstand just what the parties meant. They mutually agreed that if either should fail to keep his covenant, he should forfeit and pay to the other the sum of five hundred dollars.” But in the present case, after careful consideration of the agreement, we are not able to re'gard it as comprising two independent covenants, one to convey, and the other to pay damages for breach of the contract. The latter covenant is dependent upon the breach of the former, as
The assignments are overruled, and the judgment is affirmed.