47 F. 399 | U.S. Circuit Court for the District of Western Pennsylvania | 1891
The bill prayed specific performance by the defendant of an agreement between him and one James A. Searight, subsequently assigned by Searight to the plaintiff, for the sale of a tract of coal, with mining rights and privileges, situate in Fayette county, Pa. The agreement is dated December 12, 1879, and is in form a proposal to sell to Searight, his heirs and assigns, a tract of coal containing 190 acres, more or less, with certain mining rights and privileges. It further provides:
“The coal aforesaid, with privilege, etc., is offered at the rate of thirty dollars for each and every acre of coal contained, therein, to be ascertained by survey, to be paid in three equal annual payments, the first payment whereof to be made within thirty days from the date of acceptance of this proposal, interest to be paid on all back payments. In consideration for which, as well as the sum of one dollar to me in hand paid, the receipt whereof is hereby acknowledged, I hereby agree that this offer shall remain open for the period of six months from the date hereof, and that the said Searight, his heirs or assigns, shall have the exclusive right for said period to purchase said coal. * * * Full possession of said coal, with privileges, etc., to be given when this offer is accepted, and the first payment of purchase money is made.”
It further provided that Allen should make a deed for the coal, etc., whenever he had obtained title from the vendor under whom he held by articles of agreement; and if Searight at that time still owed' any purchase money it should be secured by bond and mortgage. Upon June 11, 1880, within the six months provided by the agreement, Mr. Sea-right gave the defendant written notice that he elected to take the coal in accordance with the terms and provisions of the agreement above recited. Upon October 7, 1882, Mr. Searight assigned all his rights under the agreement to the plaintiff. While the agreement of December 12, 1879, was signed by both parties, yet it was but an offer to sell, binding only on the defendant. Wfien Mr. Searight accepted it within the six months, and gave the defendant notice of such acceptance, the contract became binding on both parties as an agreement for the sale and purchase of the coal. Fricks Appeal, 101 Pa. St. 485; Corson v. Mulcany, 49 Pa. St. 88. The mutual obligations and rights of the parties are to be treated, therefore, as though.the agreement had in the first instance been binding on both parties. The testimony is conflicting as to the subsequent actions of the parties. The plaintiff waived an answer under oath, and the defendant accepted the waiver by filing an answer, which was not verified by affidavit. The defendant, therefore, is not entitled to have the benefit of his answer as a denial of the plaintiff’s case, unless the denial is contradicted by the testimony of two witnesses, or by one and corroborating circumstances. Patterson v. Gaines, 6 How. 550. The plaintiff, however, is put to the proof of the allegations of the .bill, the answer being analogous to the general issue at law. Bank v. Geary, 5 Pet. 99. Applying these rules, I conclude that the facts as
It was the duty of Mr. Searight, having given notice of his acceptance of the defendant’s proposal, to pay one-third, of the purchase money within 80 days after such acceptance. This the contract required, without any further action on the part of the vendor. There was not, as is usual in such agreements, any concurrent duty resting on the vendor to deliver a deed for the property at the time he received the first payment. It is conceded that the vendee did not pay or offer payment of the first installment of the purchase money within the time fixed, but that his offer of payment was nearly five months after the expiration of the time; and the defendant’s counsel have contended that by this default the rights which the vendor could claim under the agreement were lost, and the vendee had the right to treat the agreement as canceled. On the other hand, it is claimed by counsel for the complainant that a preliminary dutj' rested upon the vendor to ascertain the exact acreage of the coal by survey, and until this was done the vendee could not know the amount of the purchase money, and hence could not be held to strict performance; and also,that, at all events, time was not of the essence of the contract. Counsel have failed to find any authorities upon the question of the obligation to survey; but in my judgment it was, by the terms of the contract, a mutual obligation, and the vendee could have requested the vendor to join in the making of the survey, and, if the latter had refused to join, the vendee would not have been held to a strict compliance with the contract; but, as he did not make this request, it was his duty to offer payment based upon the number of acres mentioned in the agreement, namely, 190 acres, and his-offer upon January 6, 1881, was based upon that acreage. Time was not made of the essence of the contract by the terms of the agreement between the parties, and a court of equity would not, by anything in the agreement, be prevented from decreeing relief to the complainant, if his conduct and that of the original vendee have been otherwise meritorious. “There is no doubt that time may be of the essence of the contract for the sale of property. It may be made so by the express stipulations of the parties, or it may arise by implication from the very nature of the property, or the avowed objects of
“It may be laid down as an acknowledged rule in equity that when the party who applied for a specific performance has omitted to execute his part of the contract by the time appointed for that purpose, without being able to assign any sufficient justification or excuse for his delay, and when there is nothing in the acts or conduct of the other party that amounts to an acquiescence in that delay, the court will not compel a specific performance. The rule appears to be founded in the soundest principles of policy and justice. Its tendency is to uphold good faith and punctuality in dealing. The notion that seems too much to prevail, that a party may be utterly regardless of his stipulated payments, and that a court of chancery will almost at any time relieve him from the penalty of his gross negligence, is very injurious to good morals, to a lively sense of obligation, to the sanctity of contracts, and to the character of this court. It would be against all my impressions of the principles of equity to help those who show no equitable title to relief.”
Upon the ground of unexplained delay on the part of Mr. Searight in making the first payment the complainant is not entitled to the relief he seeks in this case. But there is further delay and laches on the part of Mr. Searight which is, in my judgment, fatal to the complainant’s case. His interview with the defendant, in which he offered payment, which was refused because of his default, took place January 6, 1881. He knew, therefore, the position taken by the defendant, and should have moved promptly in his efforts to hold the defendant to the contract. But he does nothing further until October 7, 1882, more than two years after he should have made his first payment, more than one year after he should have made his second payment, and nearly three months after he should have made his last payment, when he assigned his right, title, and interest in the agreement to the complainant, to be prosecuted at the “cost and risk” of the latter. Upon October 9, 1882, a tender was made by the attorney for Mr. Stewart, the complainant, of the whole consideration to the defendant, and refused by him on the ground that Mr. Searight had not complied with his agreement, and it was no longer binding. Thus, for a year and nine months after the interview of January 6, 1881, the matter had been allowed to rest, and, so far as the defendant knew, the vendee acquiesced in the position taken at that meeting, that the agreement was no longer in force. Such a delay, unexplained, is a sufficient ground upon which to refuse specific performance. Wat. Spec. Perf. p. 668. But there was also a delay on the part of the complainant after the assignment to him by Searight. On October 21,1882, the bill was filed in this case. The subpoena was served on the defendant November 14, 1882; and, no answer having been filed, the complainant was entitled to take the bill pro confesso after the first Monday of January, 1883, and it was so taken .by ap order entered in the clerk’s office March 23, 1883. The com
“The initiative towards the consummation of the contract was for him to take, not for the vendor. It was at the option of the vendor to rest quietly, or to proceed to enforce compliance with the agreement. The vendee had no such option. Having but a mere agreement for the title, dependent upon his own action, it was his place to be vigilant and pressing. His right might be lost by laches; the vendor’s could not. Yet with such obligations upon him, with such a necessity for prosecuting his claim to the land without unnecessary delay, he took no step to consummate the agreement until this ejectment was brought. * * * Had he been in lawful possession, there would have been some apology for the delay, and perhaps a sufficient apology.*406 His lawful possession would have been constant action under the contract, ,but, as has been seen, he had no such possession.”
There have been three distinct periods in the history of this transaction, in each of which the laches of the vendee or the complainant has been such as to prevent relief by specific performance. Taken as a whole, the defense upon this ground is impregnable, and the bill should be dismissed. Let a decree be drawn accordingly.