57 Pa. 266 | Pa. | 1868
The opinion of the court was delivered, by
The master to whom these cases were referred in the Court of Nisi Prius has examined and discussed with great research and ability many interesting questions which were raised.
By an article of agreement dated January 24th 1865, Samuel Wilson agreed to sell and convey to William Getty a certain messuage and tract of land in Clarion county, containing 650 acres, more or less, for the consideration of $50,000: $15,000 to be deposited in bank with deeds for the property, which was to be paid over to Wilson “ as soon as William A. Porter, counsel for the parties, pronounces the deed to be complete and perfect.” The balance of the purchase-money was to be paid in instalments, $10,000 April 1st 1865, $10,000 May 1st 1865, and $15,000 June 1st 1865. Prior to the execution of the agreement there had been deposited with Mr. Bobins, the president of the Philadelphia National Bank, a package containing a deed from Thomas Baker and wife to Peter B. Simons, a grantee named by Mr. Getty, for the tract of land in question, with various powers of attorney and certificates of search relating thereto, and also the $15,000 called for in the agreement. The vendor accordingly submitted to Judge Porter a brief of the title to the tract of land in question, which after examination he pronounced to be defective, and so informed the parties. Soon after the vendee notified the vendor that he declined to accept the property in consequence of this decision, and demanded the return of the money which had been deposited in bank.
If, upon the true construction of this agreement, Judge Porter was appointed a referee to decide whether the title was a good one, his decision must be regarded as conclusive upon the parties whether it was right or wrong. No technical phrases or set form of words is required to make a binding reference. It is sufficient if it appears that the parties mutually agreed to . submit the subject to the person or persons named: McManus v. McCulloch, 6 Watts 360. In Speer v. McChesney, 2 W. & S. 233, a person was chosen to measure a job of mason work, and the parties agreed to abide by his measurement. In Leebrick v. Lyter, 3 W. & S. 365, it was merely provided that the quantity of stone in a wall should be measured by the engineer of the canal. The only question was, who was the person intended as the referee. The gentleman named in the agreement in this ease is described as the counsel of the parties, that is of both parties. The first payment was to be made as soon as he pronounced his decision. The other payments were to follow in quick succession. The whole purchase-money was to be paid in little more than four months from the date of the contract. The vendee would have had a right, independently of any agreement, to have the title examined by his own counsel, and to decline the purchase, if it was unmarketable.
There are many cases in whiph equity will refuse to decree the specific performance of an agreement, which it will decline to rescind, thus leaving the parties to their legal remedies. But if a case is made out which will justify the court in declaring a contract at an end, it will in general be ordered to be delivered up
Decree affirmed at the costs of the appellants.