Spotts v. Spotts

4 Pa. Super. 448 | Pa. Super. Ct. | 1897

Opinion by

Smith, J.,

The material averments of the bill ill this case set forth a written contract for the sale of a lot of ground, part payment of the purchase money, a tender of the balance, and demand for a deed as called for in the writing. The prayer was for specific performance. The answer denies that the contract was completed and alleges that the writing was not delivered to the plaintiff in execution of the agreement but to be handed to the defendant’s attorney, and that the plaintiff retained it without authority. The cause was tried before the president judge who, after hearing the evidence submitted by both parties and the arguments of counsel, granted the prayer of the bill. From this decree the defendant appealed.

The testimony was abundant to warrant the action of the court. There was a written agreement signed by both parties, in which the land was described with sufficient certainty, and the price, the time of payment and when the deed was to be delivered, were accurately stated. The first payment was made when the plaintiff received the written agreement and the balance was tendered at the time called for in the contract. When the tender was made two witnesses who were present testified that they saw the money offered to the defendant which she refused. They also stated that they heard her admit that she had sold the lot to the plaintiff by written agreement and that he had paid 'her $100 of the purchase money. The testimony of these witnesses is substantially the same as that of the plaintiff as to what then occurred and was not denied by the defendant. The testimony of these witnesses with that of the plaintiff as to the entire transaction, the written contract held by him, the payment of the first instalment and its retention by the defendant, were clearly sufficient to outweigh the denial of the defendant and the additional testimony adduced in her behalf. It is not alleged that the price was inadequate or the bargain improvident.

The remarks of the learned judge that some parts of the answer were not responsive to the bill and therefore the burden as to those matters was cast upon the defendant are of no importance because, at the hearing, the plaintiff was required to prove his entire case irrespective of any alleged defects in the answer, and the motion to the effect “ that the answer is not responsive to the bill, and that unless the defendant makes out a defense by independent testimony the decree will be made pro confesso ” was overruled by the court.

The offers of evidence the exclusion of which is complained of in the 1st and 2d assignments of error, called for conclusions rather than statements of fact and were properly overruled. Furthermore, the defendant subsequently testified substantially concerning them. It is needless to enter upon a discussion of the law applicable to the facts, as it was duly observed by the learned court in the disposition of the case. The controlling question was one of fact and that was determined in accordance with the weight of the evidence.

The specifications of error are overruled and the decree is affirmed.