Haverstick v. Erie Gas Co.

29 Pa. 254, 1857 Pa. LEXIS 149

• Court: Supreme Court of Pennsylvania
• Decided: November 3, 1857
• Status: Published

Opinion

The opinion of the court was delivered,

by Lowrie, J.

In strict law this covenant was broken by the defendant’s failure to deliver the deed at the time therein specified, and then the plaintiff had a right to his action- of covenant to recover back his money paid and damages. It is equity that intervenes and allows the defendants still to perform their covenant, on payment of compensation for their negligence, and declares that the time of the performance ought to be regarded as immaterial when there has been no serious change of circumstances affecting the contract, and when the party complaining of the neglect has not seriously urged the performance.

The principle has been well applied in this case; but there was error in the mode of settling the compensation. The plaintiff having bought the land and paid for it, was prima facie entitled to compensation, at least equal to the interest on his payment from the date of defendant’s failure until the tender of performance, when it lay upon the defendants to show to the satisfaction of the jury that the plaintiff has not suffered that amount of damage, and that that would be more than compensation. In forming thi3 judgment, the jury will have to know what diligence and negligence there was on both sides, and what advantages and disadvantages the delay may have occasioned.

The plaintiff cannot recover damages for having to employ counsel to bring this suit.

Judgment reversed and new trial awarded.