Sands, Herdic & Co. v. Arthur

84 Pa. 479 | Pa. | 1877

The judgment of the Supreme Court was entered,

Per Curiam.

This case is easily stated in a few words. Arthur was employed by Sands,- Herdic & Co., to do certain work in a saw-, mill. Herdic agreed by parol to sell a lot of ground to Arthur; and Arthur agreed, Herdic and the other members of the firm consenting thereto, that one-third of the price of the lot should be applied in payment of the work done at the saw-mill.. No possession -was taken of the lot, no actual application of the one-third of the price was made upon the work done. When the work was completed Herdic tendered a deed, and demanded a bond and mortgage for the two-thirds of the purchase-money, leaving the one-third to stand as a credit on the work. Arthur refused to accept the deed, on the ground that the bargain was for a lot of one hundred and twenty-five feet in width, while the deed was for one of but seventy-five feet in width. The question is, can this parol contract be enforced in the face of the Statute of Frauds and Perjuries ? Clearly it cannot unless we overturn the authorities which declare that a vendor though ready and willing to perform his contract cannot recover the purchase-money, on the ground that equity will not decree specific performance where the remedy is not mutual; and it is clear the vendee cannot compel specific performance because of the Statute of Frauds : Wilson v. Clarke, 1 W. & S. 554; Ellet v. Parson, 2 Id. 418 ; Meason v. Kaine, 13 P. F. Smith 335; Same v. Same, 17 Id. 126. This principle was fully settled when this court overruled the doctrine of Jack v. McKee, 9 Barr 240, and kindred cases ; in Hertzog v. Hertzog, 10 Casey 418 ; Dumars v. Miller, 10 Casey 319; and Graham v. Graham, 10 Casey 475; and there held that the measure of damages for the breach of a parol contract is not the value of the land, but compensation only for the damages caused by the breach of the contract. In the last case of Meason v. Kaine, 13 P. F. Smith 335, it was said that actions to enforce a parol trust forbidden by the Act of 1836, rest on the same grounds as actions to enforce a parol sale of land, the mischief being the same, to wit: the encouragement given to fraud and peijury. Hence it was said to sustain the recovery of the purchase-money is to enforce the trust itself; for the payment of it draws the title to the cestui que trust, on the ground that equity will not permit him to hold the title and the money. Nor would the remedy be mutual, for if the holder of the title deny the trust resting on the statute, the eestui que trust could not by a tender enforce the trust. Now the case before us presents the very danger which the statute is intended to avoid. Arthur claims title by the parol bargain to a lot of one hundred and twenty-five feet in width, while Herdic denies any such bargain. The consequence is the true bargain must be established by the testimony, and here comes in the danger of fraud or perjury.

It is argued the bargain is not void. This is true, and so the cases referred to hold ; but it is the measure of damages which is the subject of decision, and this is held to be only compensation for expenses and other incidental damages, and not the price or purchase-money; and as the vendee cannot enforce the contract for the land, mutuality, which is the rule of the remedy in equity, forbids the recovery of the price. Hence the $1000 cannot be set up as a payment in this action. Judgment affirmed.