Loewenstein v. Armstrong

Superior Court of Pennsylvania

Loewenstein v. Armstrong

27 Pa. Super. 543, 1904 Pa. Super. LEXIS 390

CourtSuperior Court of Pennsylvania

DecidedMarch 14, 1904

DocketAppeal, No. 212

StatusPublished

Cited by1 cases

This text of 27 Pa. Super. 543 (Loewenstein v. Armstrong) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Loewenstein v. Armstrong, 27 Pa. Super. 543, 1904 Pa. Super. LEXIS 390 (Pa. Ct. App. 1904).

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Opinion

Opinion by

Rice, P. J.,

The defendant’s contention amounts to this, that the plaintiff forfeited the money paid upon the execution of the contract because he did not tender the balance of the purchase money and a deed, prepared for execution by the owner of the premises, within thirty days. We quote the language of his counsel: “The agreement was signed on January 5th, 1904. Not until the 19th of February did the plaintiff, according to his statement of claim, tender to the defendant a deed, together with the purchase money. This was some four or five days after the expiration of the time provided for in the agreement under which the contract was to have been completed. The defendant then refused to make conveyance of the property and also refused to return the sum of $250 which he retained as damages resulting from plaintiff’s failure to perform the terms of his agreement to purchase the property within the time provided for.” In order to sustain his claim of forfeiture we must ignore the covenant on his part that “ clear title,” aside from a certain specified incumbrance, was “ to be given or money to be refunded,” or hold that his mere readiness and willingness to perform within the thirty days, not manifested in any way to the plaintiff, were equivalent to a tender of performance within the time specified. The mere statement of the proposition carries with it its own refutation. As was said by our Brother Smith in Eberz v. Heisler, 12 Pa. Superior Ct. 388, “ the alleged readiness to perform, though perhaps existing in the defendant’s mind, was not manifested by any of the acts in which performance consists.” Hence the plaintiff was not in default; but, upon his tender of the deed and the balance of the purchase money, and the refusal of the defendant to have the deed executed, was entitled to demand repayment of the money he had paid upon the execution of the contract. The case last cited and Vankirk v. Patterson, 201 Pa. 90, are not analogous to the present in every particular but the principles enunciated therein are so clearly applicable as to render further discussion unnecessary.

Judgment affirmed.

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Opinion by

Rice, P. J.,

The defendant’s contention amounts to this, that the plaintiff forfeited the money paid upon the execution of the contract because he did not tender the balance of the purchase money and a deed, prepared for execution by the owner of the premises, within thirty days. We quote the language of his counsel: “The agreement was signed on January 5th, 1904. Not until the 19th of February did the plaintiff, according to his statement of claim, tender to the defendant a deed, together with the purchase money. This was some four or five days after the expiration of the time provided for in the agreement under which the contract was to have been completed. The defendant then refused to make conveyance of the property and also refused to return the sum of $250 which he retained as damages resulting from plaintiff’s failure to perform the terms of his agreement to purchase the property within the time provided for.” In order to sustain his claim of forfeiture we must ignore the covenant on his part that “ clear title,” aside from a certain specified incumbrance, was “ to be given or money to be refunded,” or hold that his mere readiness and willingness to perform within the thirty days, not manifested in any way to the plaintiff, were equivalent to a tender of performance within the time specified. The mere statement of the proposition carries with it its own refutation. As was said by our Brother Smith in Eberz v. Heisler, 12 Pa. Superior Ct. 388, “ the alleged readiness to perform, though perhaps existing in the defendant’s mind, was not manifested by any of the acts in which performance consists.” Hence the plaintiff was not in default; but, upon his tender of the deed and the balance of the purchase money, and the refusal of the defendant to have the deed executed, was entitled to demand repayment of the money he had paid upon the execution of the contract. The case last cited and Vankirk v. Patterson, 201 Pa. 90, are not analogous to the present in every particular but the principles enunciated therein are so clearly applicable as to render further discussion unnecessary.

Judgment affirmed.

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Bluebook (online)

27 Pa. Super. 543, 1904 Pa. Super. LEXIS 390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loewenstein-v-armstrong-pasuperct-1904.

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