237 Pa. 86 | Pa. | 1912
Opinion by
The consideration of this case has been approached from so many angles, that it is difficult to blaze a correct line through the underbrush of legal technicalities to the material points necessary to a proper solution
The important question of fact in the case is whether the original option was properly exercised within the time specified in the agreement for the sale of the land in dispute. The agreement, dated December 30, 1904, was in writing and under seal. It was signed by Herman and his wife, who agreed to convey, and by Schaeffer, who had the option to purchase. The conveyance, in the event of the option being exercised, was to be made to Schaeffer and Sheffer, their heirs and assigns. The purchase price was to be paid on or before January 1, 1908, and the agreement was to be deemed null and void if the consideration was not paid within the time specified. Time was of the essence of the contract, it being necessary in order to exercise the option to make, or tender, payment in accordance with the terms of the agreement. This means that the optionees had.until the first day of January, 1908, to make or tender pay
It is also urged that the original agreement was a unilateral nudum pactum, without any consideration to support it, and therefore not specifically enforceable. We cannot accept this position as sound. We agree that there is a sharp conflict of authority as to the effect to be given an option under seal when the courts are asked to decree specific performance of such a contract. On one side, it is held, that the seal renders the option irrevocable, and on the other, that the courts, looking to the substance and not the form, should dis
Nor can we agree with the contention of appellants that the tender made by Schaeffer to Herman was accompanied with such conditions as to make it invalid. The general rule no doubt is that a tender must be absolute and without condition, but in this broad sense the rule must necessarily be subject to some qualifications as applied to the facts of a particular case. It is more accurate to say that a tender, to be good, must not be accompanied by any condition to which the creditor has a right to object, and is not invalidated if coupled with a condition upon which the debtor has a right to insist, and to which the creditor cannot reasonably object: 28 Am. and Eng. Ency. of Law (2nd Ed.) pages 31 and 32, and notes. It is proper to accompany the tender with an explanation of the transaction. In the present case Herman had the right to insist upon the payment of the purchase price and it was necessary for the optionees, or one of them, to tender the entire amount, and this was.done. It is true that the tender was accompanied by an explanation that Sheffer had forfeited his rights under the contract, and that it was being exercised by Schaeffer alone. If this explanation
Again, it is urged with much force, that even if the tender be held good, the contract can only be specifically enforced in favor of both optionees, and that the court erred in decreeing a conveyance to Peale and Shoemaker, their heirs and assigns. This objection is more apparent than real. The original agreement required a conveyance to the optionees, their heirs and assigns. No one will doubt that if both optionees had assigned their interest in the contract to other parties, those parties by complying with the terms of the agreement, could demand performance; or if one of the optionees had formally relinquished his rights under the agreement in favor. of the other, and the remaining optionee had then assigned all rights resulting to him to third parties, they would be in position to insist upon specific performance. This in substance is what the learned court below found the parties did. Sheffer forfeited all his rights under the contract, and this left Schqeffer in position to carry out the contract, to tender, the entire purchase price and to demand performance. Schaeffer was therefore in position to assign/his interest to Peale and Shoemaker, and they as his assignees, could assert whatever rights he had under the contract. Equity regards that as done which should
Many other questions have been raised and discussed, but we do not consider them vital in the consideration of the case. The facts fully warranted the findings and the conclusion reached respecting the original parties to the transaction was equitable and just.
We sustain those assignments which relate to the order of the court below refusing to sustain the demurrer filed by Warfield, Harris and the American Lime and Stone Company. As to these defendants the bill is dismissed with costs. The plaintiffs having improperly included these defendants in the bill, should pay these costs.
Decree modified so as to exclude clauses 3, 4 and 5 from its requirements, and as modified, it is affirmed. The costs of Warfield, Harris and the American Lime and Stone Company to be paid by appellees, and all other costs by appellants.