94 Pa. 456 | Pa. | 1880
delivered the opinion of the court,
If the court ordered the nonsuit, in this case, under the impression that the defendant’s parol guaranty could not be enforced because of the Statute of Frauds and Perjuries it made a mistake. In this state it is well-settled law that an action will lie upon parol contracts concerning lands, though they be such that specific performance of them will not be enforced. Such is the doctrine of Thompson v. Shepler, 22 P. F. Smith 160, and of Frederick v. Campbell, 13 S. & R. 136. The latter ease holding that, in an action upon a bond for purchase-money, parol evidence was admissible to show that at the time of the execution of the deed the vendor declared that he had good title to two hundred and twenty-five acres of land and would warrant that quantity. Now Eckenrode did expressly warrant that the tract of land, then about to be conveyed, did contain one hundred and forty-four acres, and though he had made an assignment of the premises to Durburow, for the benefit of his creditors, yet there was such an interest remaining in him as was sufficient to support the undertaking here alleged; in other words, he was not a mere volunteer.
Thus, the very nature of the alleged contract between these parties was such that, had it been in'writing, specific execution of it could not have been compelled, for it was not intended that the deficiency should be made good in land. Schriver was about to pay $4500 fór a certain defined tract of land, and the warranty could have meant nothing more than this, that if there should turn out to be a deficiency in the guaranteed amount of land, Eckenrode would make it good, not in land but in money. Let us now suppose the plaintiff to have purchased on the faith of the agreement of the defendant that the farm should contain one hundred and forty-four acres, we have, then, this condition of affairs; the plaintiff has been obliged to pay the whole amount of the purchase-money to the assignee, who, of course, was not bound by the gfiaranty, and yet he gets but one hundred and thirty-two acres, whilst the price paid for the fourteen acres, which the defendant undertook to see that he should have, has, as we discover from the final account of the assignee, gone into Eckenrode’s pockets. This is neither just nor lawful, and if the jury should find, as they may find, the case to be as above supposed, this money honestly belongs to Schriver, and he ought to have it.
The exception which embraces the ruling of the court on the question of the exclusion of evidence proposed by the plaintiff is not sustained.
The judgment is reversed, and a new venire is awarded.
