Smith & Fleek's Appeal

69 Pa. 474 | Pa. | 1872

The opinion of the Court was delivered, January 9th 1872, by

Williams, J.

This was a bill for an injunction to restrain the defendants from cutting timber on a tract of land which they had sold the plaintiffs. The bill alleged that the land had been conveyed to them by the holder of the legal title, in pursuance of the contract of sale, and that they had taken possession of it prior to the commission of the acts complained of. Upon the filing of the bill, .the court awarded a preliminary injunction, which was made perpetual on final hearing. The defendants have appealed from the decree, and ask its reversal on two grounds:—

1st. That the complainants’ case is not within the equitable jurisdiction of the court, but their remedy, if any, is by an action at law.

2d. That the contract under which they claim title is within the Statute of Frauds, and equity will not enforce its specific execution.

These questions will be considered in their order. Is, then, the plaintiffs’ cause of complaint within the equitable jurisdiction of the court ? Cutting down timber to the prejudice of the inheritance is undoubtedly waste, and may be restrained under the equity power conferred on the courts, by the Acts of the 16th June 1836, and 14th February 1857, for the “prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals.” It was so decided in Denny v. Brunson, 5 Casey 382, where the lessee of a tenant at will, upon a bill filed by the owner, was restrained by injunction from cutting down timber and ornamental trees to the prejudice of the owner’s reversionary interest. It cannot be doubted that the complainants’ case is within the chancery jurisdiction of the court if they had such right or title to the land as would enable them to invoke its exercise for the prevention of the acts complained of. Whether they had such title, or not, is the main question presented by the record. If the contract, on which their title depends, is within the Statute of Frauds, they had no right to the remedy invoked, and’ their bill should have been dismissed. But if the contract is not within the statute, and equity would enforce its specific execution, they were clearly entitled to the injunction prayed for. The defendants insist that the contract is within the statute, because it was not signed by the plaintiffs, and because the notice of their election to take the land, under the option contained in the contract, was not given in writing. But the statute, while it requires the contract to be in writing, does not require it to be signed by both parties. It is sufficient if it be signed by the vendor — the party to be charged — if the vendee has accepted it: Lowry v. Mehaffy, 10 Watts 387; McFarson’s Appeal, 1 Jones 503; Shofstall v. Adams, 2 Grant 209; Simpson v. Breckenridge, 8 Casey 287. Nor was it necessary that notice of the plaintiffs’ election to take the land, under the option given in the contract, should be in writing. By the express terms of the contract the defendants agreed to sell the land to the plaintiffs for $6000, the plaintiffs “ to have the refusal ten days from date.” It is by no means certain that the contract would not have been binding on the defendants if the plaintiffs had given no notice whatever of their election to take the land in accordance with its terms. If it would have been binding on the plaintiffs if they had remained silent, apd had given no notice of their refusal, why should it not be binding on the defendants? But whether binding on them without notice of the plaintiffs’ election or not, there is nothing in the terms of the contract or the provisions of the statute which requires that the notice should be in writing. The verbal notice given by the plaintiffs was sufficient, and their election to take the land, like the happening of any other contingency on which performance of the agreement rests, rendered the contract as absolute and binding as if no option had been given to the plaintiffs. Nor is it so devoid of mutuality, on account of the option, as to prevent a court of equity from decreeing its specific execution. This question is so satisfactorily discussed in Corson v. Mulvany, 13 Wright 88, where the agreement for the purchase of the land was at the option of the vendee, that we need do no more than refer to the opinion without repeating or attempting to supplement the argument. Equally unfounded is the objection that the contract is incomplete in its terms. It sets out the parties and the consideration, and sufficiently describes the subject-matter— “ said land is all that piece bought of Rose by Thomas Smith and Porter Fleek” — oertum est quod certum reddipotest. If the subject of the contract is described, parol evidence is admissible to apply the description to the land: Ferguson v. Staver, 9 Casey 411. But it is further objected that the plaintiffs are not entitled to specific execution of the contract, because they did not tender performance within the time limited by the agreement. It is a sufficient answer to the objection that by the terms of the contract no time is fixed for its performance. The agreement provides that four thousand dollars of the purchase-money shall be paid at the time the deed is made, and two thousand in one year. But no time is fixed for the making of the deed, and therefore the law implies that it was to be made within a reasonable time. Can there be a doubt that if the defendants had tendered the plaintiffs a deed within a reasonable time after notice of their election, they would have been bound to accept it, and pay the purchase-money in accordance with the terms of the agreement, though more than ten days had elapsed from its date ? If so, is it not equally clear that they would have been bound to make the plaintiffs a deed on tender of performance of the contract on their part? It is evident that time was not intended to be of the essence of the contract as respects its performance; it is only material as it respects the option given for its refusal, and, therefore, the plaintiffs were not bound to perform, or offer to perform it within ten days after its date, on pain of its forfeiture. Nor was tender of performance absolutely essential to the maintenance of a bill for the specific execution of the agreement by the defendants. It would be sufficient to aver the plaintiffs’ willingness and readiness to perform. It is clear that the plaintiffs would he entitled to a decree for the specific execution of the contract, if they had not obtained the legal title from Rose, and if they had filed a bill for the purpose, the court would have awarded an injunction, pendente Hie, restraining the defendants from cutting timber or committing other acts of waste to the prejudice of the estate, and made it perpetual on final hearing. But even if the parties were bound to perform the contract within ten days from its date it was competent for them to extend the time by a verbal agreement, and to fix such subsequent time for its performance as might suit their convenience. If then “ the defendants did agree with the plaintiffs, on the 12th of May 1868, to meet them in Meadville on the 18th of the same month, to receive payment on their contract with the plaintiffs, dated May 6th 1868, and otherwise consummate the trade specified in said contract; and did agree that the plaintiffs might pay to Peter Rose whatever balance was due from the defeAdants to him for the land in question, and that a deed should then be made directly by the said Rose to the plaintiffs for the land, and if the plaintiffs have performed or tendered performance of the contract and agreement between the parties,” as shown by the evidence, and as the jury have found, then the plaintiffs under their deed from Rose, have not only the legal title to the land, hut the equitable title of the defendants. Having then the whole title to the land, and having taken possession of it under their contract with the defendants, the plaintiffs were entitled to maintain their bill for an injunction to restrain the defendants from committing the acts of waste complained of.

Nor have the defendants any reason to complain that the court, instead of dismissing the plaintiffs’ bill and compelling them to bring ejectment, awarded an issue for the trial of the facts in dispute between the parties. Substantially the same questions were submitted to the finding of the jury in the issue directed by the court as would have arisen on the trial of the ejectment. The burden of proof was on the plaintiffs, and the defendants were deprived of no right or advantage that they would have had in the trial of an ejectment. It is not alleged that the court committed any error in its rulings in the trial of the issue, or that the verdict of the jury is against the evidence. If, then, the plaintiffs have both the legal and equitable title to the land, under the facts found by the jury, why should not the decree restraining the defendants from cutting and removing the timber thereon be allowed to stand ?

Decree affirmed at the costs of the appellants.