272 Pa. 556 | Pa. | 1922
Opinion by
Piacentino entered into three contracts with Young, by which he agreed to buy five properties. In each instance, settlement was provided for within ninety days, but the transactions were not completed within the time fixed. After the expiration of the period determined upon, the purchase price of one house was paid, and the title transferred. As to the others, settlements were postponed by agreement, shown either by express words or conduct, until January 30, 1919. On that day, the parties met in the office of a trust company to close the negotiations. The necessary calculations were made, and the balance due by the vendee was found, the correctness being certified to by the signature of the vendor to the account prepared. It then appeared that the check of a building and loan association for $5,000, being the amount which it had agreed to advance Piacentino upon mortgages of two of the houses, was not in hand, and could not be obtained until the next day. After discussion, in which the defendant demurred to further delay, on account of loss of interest on certain mortgages upon which he was liable, the vendee deposited with the trust officer a sum more than sufficient to cover the charges for twenty-four hours. Young left the executed deed, but, finding upon his return the following morning that the balance had not been paid in, withdrew it about noon. Shortly after three, the remainder of the purchase price was handed to the trust company, and notice of this fact was attempted to be given Young.
The legal questions here involved are without difficulty. Specific performance of a contract for the sale of real estate, where time is of the essence of the contract, will not be enforced if there has been a failure of the vendee to comply with the obligation assumed within the period limited: Doughty v. Cooney, 266 Pa. 337; McKuen v. Serody, 269 Pa. 284. This rule is subject to the qualification that the parties may by their actions surrender the right to demand strict compliance. In Vankirk v. Patterson, 201 Pa. 90, 95, quoting with approval from Pomeroy on Contracts, the principle is thus stated: “Wherever time is made essential, either by the nature of the subject-matter and object of the agreement, or by express stipulation, or by, a subsequent notice given by one of the parties to the other, the party in whose favor this quality exists — that is, the one who is entitled to insist upon a punctual performance by the other, or else that the agreement be ended — may waive his right and the benefit of any objection which he might raise to a performance after the prescribed time, either expressly or by his conduct; and his conduct will operate as a waiver when it is consistent only with a purpose on his part to regard the contract as still subsisting and not ended by the other party’s default.” Where such conditions appear, the vendee may perform, or offer to do so, until the expiration of the new date stipulated: Mansfield v. Redding, 269 Pa. 357.
The application of the decisions to the present controversy depends upon the determination of the facts, the real cause of contention here. Did it appear that the
With these thoughts in mind, the record has been examined to discover if the findings adopted ultimately are justified by the evidence produced, and we are convinced that the proper determinations have been reached. Though denied by Young, there is positive testimony, supported by convincing circumstances, that the time for
The decree of the court below is affirmed at the cost of the appellant.