76 Pa. Super. 15 | Pa. Super. Ct. | 1920
Opinion by
This is a bill for the specific performance of a contract, in writing, alleged to have been entered into by the de
The learned trial judge did not determine whether the contract was signed by Mrs. Lessy or not. The case was disposed of on the ground that even if it were signed by her, the extension of the period for settlement, without her consent, released her from its obligation. The decree complained of was accordingly entered, which dismissed the bill and directed the payment by Michael Lessy to the plaintiff of the amount of purchase money paid by the latter, and the expenses incident to the contract.
The appellant contends the court should have found that the agreement was signed by Mrs. Lessy and that the extension of the time for settlement was immaterial as to her. It is also suggested in the argument that a decree should have been entered against Michael Lessy, at least, who, as appears from the evidence, was willing to convey the property.
The first obstruction in the way of the plaintiff is the conflict of evidence with reference to the wife’s signature to the contract. A decree for specific performance will only be entered in a clear case; if the facts are doubtful, the chancellor will withhold his hand. If we assume, therefore, that a decree for specific performance can be entered against a wife who declines to join the husband in the conveyance of his estate, where she has not entered into a contract acknowledged by her in accordance with the acts of 1770, 1 Sm. L. 307, and 1901, P. L. 67, we are confronted by a serious dispute as to whether the contract was executed at all by Mrs. Lessy, and if not signed by her, no decree could be entered
We think, however, there is merit in the plaintiff’s complaint, that a decree was entered in his favor for money without an opportunity to be heard on the question of the amount of damages to which he may be en
So much of the decree as awards damages to the plaintiff is reversed, and the bill is dismissed without prejudice, at the cost of the appellant.