Meyers v. Catawissa Coal Co.

67 A. 904, 219 Pa. 1, 1907 Pa. LEXIS 591

• Court: Supreme Court of Pennsylvania
• Decided: June 25, 1907
• Docket: Appeal, No. 123
• Status: Published

Opinion

Opinion by

Mr. Justice Potter,

This is an appeal from a judgment entered for want of a sufficient affidavit of defense. The defendant company agreed in writing to sell to Henry Meyers, the plaintiff, its entire capital stock, stipulating that it owned in fee a certain tract of anthracite coal in Columbia county, which was to be free of debt, liens, taxes and incumbrances, with the exception of a mortgage for $50,000. Upon the execution of the contract, the plaintiff paid down the sum of $5,000, with the explicit agreement that if within thirty days the titles to the property ivere not ££ clear and satisfactory to said Meyers ” the money was to be returned. If the titles proved to be “ clear and satisfactory to said Meyers ” a second installment of the purchase money was to be paid, not later than thirty days from the date of the agreement.

The plaintiff brought this action to recover the said sum of $5,000, paid by him on account of the purchase money, alleging that the titles to the tract of land described in the agreement were not made clear and satisfactory to him within, the period of thirty days named therein. The defendant averred in an affidavit of defense, full compliance on its part with the agreement, and averred further that with the exception of the mortgage as contemplated, the title is clear and satisfactory, and is marketable. This affidavit was adjudged insufficient by the court below, for two reasons. First, because it contained no averment as to the state of the title within the period of thirty days following the agreement, within which the title was to be made clear and satisfactory to the plaintiff. Second, because it avers merely that the title is clear and satisfactory, and marketable; and fails to aver that it is satisfactory to the plaintiff, as, under the agreement, it was to be.

W e all agree that the first reason is good, and is in itself sufficient to sustain the judgment. The contract is clear and specific, that the titles were to be proven good to the satisfaction of the plaintiff within thirty days, and that he was to make a large additional cash payment within that time. This involved not only an examination of the titles, but a financial arrangement, and it may very well have been that the time limit fixed was important, in view of the money which was to be provided by the plaintiff, and paid over. At any rate, the parties did unquestionably agree upon a definite period within which the titles were to be shown as clear and satisfactory to Meyers, and the affidavit of defense does not aver compliance with the contract in this respect within the limit fixed.

The assignments of error are overruled, and the judgment is affirmed.