52 Pa. Super. 355 | Pa. Super. Ct. | 1913
Opinion by
The plaintiff, Thomas F. Stratford, filed his bill in equity to enforce the specific performance of a written option to purchase real estate, executed and delivered by the defendant, Harry L. Lukens, to said plaintiff on January 9, 1911, in the following form: “Jan. 9, ’ll. I, Harry L. Lukens, do hereby give to Thomas F. Stratford, the privilege to purchase at any time within the next 30 days ending Febr. 9, ’ll, that piece of property on the south side of Shirley St., at > present occupied by the
The defendant admitted the receipt from the plaintiff of the $1.00 above mentioned, and it is a conceded fact that the dollar was paid to the defendant at the time he executed and delivered the option. On February 6, 1911, the plaintiff caused written notice to be served on the defendant that the plaintiff elected to purchase the property described in the option and that he was ready to pay the said sum of $1,500 on receipt of a proper deed for the land. The plaintiff offered several times during the life of the option to pay the defendant the purchase money of $1,500 for a deed of the land, and on February 9, 1911, he made a formal legal tender of the full amount of said purchase money to the defendant and' demanded a deed conveying the land, but the defendant refused to comply with the terms of the option and refused to execute and deliver to the plaintiff a deed in accordance therewith.
No question was raised as to the writing sufficiently describing the land and fixing the time of payment and amount of the purchase money. We think when the defendant executed and delivered the written option of January 9, 1911, granting the plaintiff thirty days within which to decide whether or not he would purchase the land, described in the writing, for the price named therein,, and accepted the sum of $1.00 as payment on the option, which was certainly a good consideration, and this was followed by notices that the plaintiff elected to purchase the property and by a legal tender of the purchase money, and all this within the time limited in the option, it was too late when the bill was filed for the defendant to successfully plead the want of mutuality in the option contract: Yerkes v. Richards, 153 Pa. 646; Corson v. Mulvany, 49 Pa. 88.
The learned judge below heard the case on bill, answer
The first assignment of error is: “The court erred in not determining in limine the question raised by the eighth paragraph of defendant’s answer.” We consider this a bad assignment in that it does not state the question raised by said paragraph of defendant’s answer. Nor does the assignment even state where said paragraph may be found. ' But the more serious defect in it is that it does not quote from said paragraph of the answer the portion thereof to which the assignment is intended to refer. Instead of the eighth paragraph raising a single question, as stated in the assignment, it contains three distinct questions, to wit: 1. “That the paper called an option was obtained from defendant by false and fraudulent representations by the plaintiff.” 2. “That the said paper is not such a paper writing as would give a court of equity jurisdiction to enforce specific performance thereof.” 3. “That the paper set forth in the plaintiff’s bill is entirely and wholly without consideration.” It will thus be seen at a glance that the first assignment leaves us in the dark as to which of the three distinct propositions contained in paragraph eight of the answer the assignment refers when it reads, “the question raised by the eighth paragraph of defendants answer.” We, therefore, hold that the first assignment is so defective that the appellant is not entitled to have it considered.
The second, and only remaining assignment of error, is little, if any, better. It is simply a recital of the final
Upon the main question as to the sufficiency of the written option in this case and the facts found by the learned judge below to sustain the decree for specific performance, we cite: Corson v. Mulvany, 49 Pa. 88; Childs v. Gillespie, 147 Pa. 173; Yerkes v. Richards, 153 Pa. 646; Same v. Same, 170 Pa. 346; Borie et al. v. Satterthwaite, 180 Pa. 542; Corbet v. Fuel Supply Co., 21 Pa. Superior Ct. 80.
Both assignments of error are dismissed and the decree is affirmed at the cost of the appellant.