Salaman v. Knee

7 Pa. D. & C. 719, 1925 Pa. Dist. & Cnty. Dec. LEXIS 214

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: June 22, 1925
• Docket: No. 9809
• Status: Published

Opinion

Martin, P. J.,

“Samuel Knee & Son, Agents,” agreed in writing to sell ten houses located on Frankford Avenue in the City of Philadelphia to Asher Salaman and Hyman A. Nowak. The agreement was signed by Samuel Knee, and his wife, Anna Knee, affixed her mark. The receipt for the hand-money stipulated to be paid was signed by “Samuel Knee & Son.”

The vendors were unable to perform their part of the agreement, as Anna Knee owned only one-half interest in the property she agreed to convey. The other half interest belonged to Antonetta Risi, who refused to join in the conveyance.

Asher Salaman and Hyman A. Nowak, the vendees in the contract of sale, filed a bill in equity, praying for a decree requiring Samuel Knee and Anna Knee to execute and deliver their deed for whatever interest in the premises they may have, upon payment to them of whatever sum of money may be due for their equity, with proper abatement for the deficiency in title.

An answer and replication were filed, the case proceeded to hearing and testimony was presented on behalf of both parties.

An adjudication was filed directing defendants to convey to plaintiffs their undivided one-half interest in the premises upon payment of one-half of the purchase price agreed upon, and that the other charges covered by the written contract should be abated in their proper proportion.

Twenty-nine exceptions were filed on behalf of defendants. It was averred that the contract of sale was not signed in accordance with the requirements of the statute of frauds, in that the authority of the agents to make the sale was not in writing.

There is no attempt in the adjudication to bind Antonetta Risi by the contract of sale signed by “Samuel Knee & Son, Agents.” Their authority to act for Anna Knee was confirmed by her mark affixed to the contract.

Other exceptions are directed to the findings of the trial judge that require defendants to convey the interest of which they are seized upon the receipt of the agreed price, less an abatement of one-half for the outstanding half interest they are unable to convey.

In Erwin v. Myers, 46 Pa. 96, 106, 107, 108, it was said: “If a vendor cannot make out title to the whole of the subject-matter of the contract, equity will not compel the vendee to perform pro tanto. But, says Mr. Sugden (Sugden on Vendors, 193), ‘when a vendee seeks a specific execution of an agreement, there is much greater reason for affording the aid of the court to a purchaser when he is desirous of taking the part to which title can be made.’ ‘And,’ he adds, ‘a purchaser may, in some cases, insist upon having the part of an estate to which a title is produced, although the vendor could not compel him to purchase it.’ So, in Mortlock v. Buller, 10 Vesey, 315, Lord Eldon said: ‘If a man having partial interest in an estate, chooses to enter into a contract respecting it, and agrees to sell it as his own, it is not competent for him afterwards to say, though he has valuable interests, he has not the entirety, and therefore, a purchaser shall not have the benefit of his contract. For the purposes of this jurisdiction, the person contracting under those circumstances is bound by the assertion in his contract, and if the vendee chooses to take as much as he can have, he has a right to that and to an abatement.’ In Attorney - General v. Day, 1 Vesey, Sr., 218, where tenants in common had contracted for the sale of their estate and one of them died, it was held the survivors could not compel the purchasers to take their shares. But the converse of the proposition was denied, and it was held the purchaser might compel the survivors to convey their shares, although the contract could not be executed against the heirs of the deceased. The same doctrine was laid down in Wood v. Griffith, 1 Swanston, 54, and in Milligan v. Cooke, 16 Vesey, 1, specific performance was decreed upon the bill of a purchaser with compensation for defective title by reduction of the purchase money. In Hill v. Buckley, 17 Vesey, 394, Sir William Grant, M. R., stated the general rule to be, ‘where a misrepresentation is made as to quantity, though innocently, the purchaser is entitled to have what the vendor can give, with an abatement out of the purchase money, for so much as the quantity falls short of the representation.’ The same rule of specific performance, pro tanto, at the suit of the purchaser, with compensation for deficiency, by abatement of the purchase money, was acted upon in Graham v. Oliver, 3 Beabaan, 124; in Wheatley v. Slade, 4 Sim. 126, and in Nelthorpe v. Holgate, 1 Coll. 203. It was also asserted unanimously, by the New York Court of Errors and Appeals, in Waters v. Travis, 9 Johns. 464. It is too strongly fortified by authority, as well as founded in reason, to be sueessfully denied. Hence, it has found its way into the best text-books as established doctrine. Adams, in his Treatise on Equity, page 90, lays it down that, in favor of the purchaser the rule in equity is, though he cannot have a partial interest forced upon him, yet if he entered into the contract in ignorance of the vendor’s incapacity to give him the whole, and chooses afterwards to take as much as he can get, he has generally, though not universally, a right to insist on that, with compensation for the defect. He adds, the defect must be one admitting of compensation, and not a mere matter of arbitrary damages. In Story’s Equity, § 779, the general rule is also said to be that the purchaser, if he chooses, is entitled to have the contract specifically performed as far as the vendor can perform it, and to have an abatement out of the purchase money, or compensation for any deficiency in the title, quantity, quality, description or other matters touching the estate; and in Morss v. Elmendorf, 11 Paige, 288, the chancellor went so far as to say that in a ease where the vendor never had it in his power to perform at all, if the purchaser had filed his bill in good faith, supposing at the time he instituted his suit specific performance could be decreed, he was not prepared to deny that the court would retain his suit, and award the complainant a compensation in damages. However this may be, there is nothing in the general rule of which a vendor can complain. It is his own fault if he has assumed obligations which he cannot fulfill. It cannot be inequitable to require him to perform as far as is in his power, and being in a court of equity, a decree that he make compensation for all that he fails to perform is but completing what the court has begun, and preventing a multiplicity of suits. In no just sense can it be said that thus a new contract is made for the parties. The vendor is not compelled to convey anything which he did not agree to convey, and the vendee pays for what he gets, according to the rate established by the agreement.”

The cases cited by counsel for defendants in support of the exceptions do not affect this doctrine.

In Safron v. McBurney, 269 Pa. 392, the parties stipulated that, in the event of a defect in the title of the vendors, the contract of sale was to be void; but in Medoff v. Vandersaal, 271 Pa. 169, it was held that a provision making the contract void cannot be used by the vendor to his advantage if the vendee is willing to accept such title as the vendor can convey without seeking an abatement of the purchase price.

There was no evidence offered by defendants to prove that the value of a one-half interest is less than half the price agreed upon for the entire estate in the written contract of the parties.

It was developed in the course of the trial that Antoneita Risi, who owned a half interest in the properties, had agreed to sell the entire title for $42,500, a price which is $9000 in excess of the amount which defendants were to receive from- the plaintiffs. Based upon that valuation, plaintiffs would be entitled to an abatement in the price much greater than that allowed by the adjudication. None of the exceptions filed, either those directed to findings of fact or to the conclusions of law, require a modification of the adjudication or change in the decree which it directs.

Plaintiffs were ignorant of the fact that defendants could convey but a a half interest in the properties. They dealt in good faith with defendants and were ready, willing and able to perform the covenants on their part to be performed. They are entitled to a conveyance of a half interest in the properties, subject to abatement as directed in the adjudication.

Exceptions dismissed.