Hatton v. Johnson

83 Pa. 219, 1877 Pa. LEXIS 51

• Court: Supreme Court of Pennsylvania
• Decided: January 2, 1877
• Status: Published

Opinion

Mr. Justice Paxson

delivered the opinion of the court, January 2d 1877.

The last payment, under the articles of agreement of December 6th 1871, became due on the 25th of September 1873. Had the plaintiff below been ready on that day to pay the balance of the purchase-money, he would have been in a condition to have demanded a deed, and perhaps to have rescinded the contract, in case it was not forthcoming. But if the witness Pew is to be believed, the plaintiff was not prepared to pay, and did not pay said instalment ; on the contrary, he applied for and obtained an extension of the time. Hence, as between the parties, time ceased to be of the essence of the contract, and the plaintiff had no right to rescind on the 25th of September. A party who is himself in default has no right to insist on rescission while in default: 2 Pars, on Con., 5th ed., 679. Where a day certain is designated in articles of agreement for the payment of the purchase-money and the delivery of the deed, and the time is allowed to pass by without payment, or a tender of the deed, the time for the performance by the parties becomes indefinite, but mutual and dependent, whenever it should occur: Irvin v. Bleakley, 17 P. F. Smith 24. When the parties met on the evening of November 29th 1873, the plaintiff objected to the deed that was offered him, because, 1. It was from Mr. Pew, and not from his vendors, the defendants below; 2. It was not a general warranty deed; 3. There were judgments against Boyer, one of the vendors, which bound his interest. Assuming these objections to have been sufficient, there was evidence that the vendors offered, at the same interview, to give the kind of deed the plaintiff wanted, and to remove the encumbrances ; that within less than a month thereafter they had succeeded in procuring a release of the judgments, and in having a proper deed executed. On December 20th 1873 the plaintiff commenced this suit 'to recover back the purchase-money paid. Was he in a position to rescind ? Clearly not, if the facts be as set forth in the defendant’s third point, and the court below should have so instructed the jury in their answer to said point. Where there has been indulgence on both sides, one party cannot suddenly rescind without notice to the other : Forsyth v. N. A. Oil Co., 3 P. F. Smith 173; Tiernan v. Rowland, 3 Harris 429. The defendants were entitled to a reasonable time, after the meeting of November 29th 1873, to perfect their title to meet the objections of the plaintiff. It is not necessary to refer to the specifications of error in detail. What has been said sufficiently covers the case.

The judgment is reversed, and a venire facias de novo awarded.