Irvin v. Bleakley

The opinion of the court was delivered,

by Thompson, C. J.

If essential elements, indispensible to a plaintiff’s right of recovery appear to be wanting in his case, when he has given his evidence, the court commits no error in granting a nonsuit, either on motion, or of its own accord. That is what was done in this case, and this, and the refusal to take it off, constitute the supposed error of the case.' We have very carefully examined the testimony given by the plaintiffs below, and have not been able to discover the error complained of. The plaintiffs were bound by their articles of agreement with the defendant below, to pay the balance of the purchase-money for the property, which is the subject of this dispute, “ in sixty days from the date of the articles (the 4th of February 1865), with interest on the whole amount from the 29th December 1864, or as soon thereafter as ' the deed and title-papers shall be perfected and tendered.” No money was paid or demanded at the end of the sixty days, nor was a deed tendered by the vendor. That period having passed, the time for performance by the parties became indefinite, but mutual and dependent whenever it should occur. In this category, whichever of the parties first desired to enforce performance was bound to regard his part of the contract as a condition precedent, and perform or- offer performance in order to enable him to proceed to enforce the contract: 1 Wright 135; 2 W. & S. 227; 1 Casey 354; 4 Id. 294; 3 W. & S. 300; 4 Id. 527.

The exception to this rule, if exception it be, is where the vendor proceeds on his legal title; there a tender is not necessary. But a conveyance will be provided for in the conditional verdict, if plaintiff recovers. The vendee must tender the unpaid purchase-money, as a general thing, whether he wishes to rescind or enforce the agreement. This results from the principle that a party himself in default, has no right to insist on rescission while in default: 2 Pars, on Con. 5th ed. 679. In the case in hand, the balance of the purchase-money, $20,000, was never paid or tendered by the plaintiffs at all, nor a deed demanded from the defendant, or notice of a determination to rescind the contract given for over three years after performance was by the articles of agreement to have taken place. In this condition of things and without reference to performance on their part, the plaintiffs brought this suit to rescind the contract, and recover back the purchase-money paid in hand, viz. $20,000.

The claim to rescind seems to be rested on acts of the defendant which the plaintiffs insist do, per se, amount to rescission. When the defendant sold, he retained possession of the premises, with the assent of the vendees, as we may infer from the fact that they made no demand of it at any time. Indeed, the law is, where the contract is silent on the subject of possession, the vendor retains it, until he has received his • purchase-money: Smith v. Patten, 1 S. & R. 84; Baum v. Dubois, 7 Wright 260. It is alleged that the acts of the defendant while thus in possession, so changed the property that it justified them in claiming a rescission of the contract. This is an idle claim, in view of the evidence given. The acts neither changed nor deteriorated the property in the least; besides, the plaintiffs made no objection to any of the uses now complained of. One was that defendant allowed a person to erect a rude slaughter-house on one of the lots; another was, in permitting a person to open a stone quarry upon another portion of the property, and haul away a few loads of stone from it, to compensate for opening; a third was, laying an oil pipe through one of the lots to an oil tank which defendant had erected on a piece of ground he had reserved in the sale; and a fourth, that the Jamestown and Franklin Railroad Company laid a water-pipe across a portion of one of the out lots embraced by the purchase. The company took the possession of this ground for this purpose under their charter, the defendant refusing to grant it, on the •ground that he had already sold the property. None of these matters in the least changed the property from any intended use by the plaintiffs, and if any in the least deteriorated, that could have been compensated in damages. All were temporary uses. There is less than nothing in these things as grounds of rescission. It is not as if the ground sold had been a small lot or piece of ground, in which case some of these things might have been a more serious encroachment; but the purchase was of a number of acres, but how' much I cannot state with precision. There is nothing in all this for which the learned court should be reversed.

We need say little of the alleged encumbrances. The first one, a judgment of the county of' Venango against Bleakley, and others, was entered on the bail bond of the treasurer of Venango county for $30,000. It was a cautionary judgment. It was both entered and released before the plaintiffs purchased, as to the defendant’s property. The release was by the attorney of the commissioners, and as they never objected, so far as the testimony goes, it must be presumed to have been authorized by them. The commissioners themselves discharged the judgment against all parties two years before suit was brought by the plaintiffs. There were two other judgments against the defendant and others, amounting to some six or seven thousand dollars, which the purchase-money in the hands of the plaintiffs would nearly three times over have satisfied. This was therefore no ground for a rescission; they had the means in their own hands to pay the judgments if the defendant did not satisfy them. He was not bound, however, to remove them unless he was put upon doing so by the demand of the plaintiffs of performance, and at the same time showing a readiness and willingness on their part to comply with their covenants. This they did not do. Why should the defendant have removed these liens in consideration of the plaintiffs, without knowing whether they were going to complete the contract on their part ? While they did nothing towards that end, their existence did not hurt them: Hampton v. Speckenagle, 9 S. & R. 212.

The exceptions to the admission and rejection of evidence are insufficiently presented according to our rules of court on the subject of assignments of error, and we are not therefore bound to discuss them. We have, however, considered them so far as to see that there is nothing to disturb the decision of the court in the ease, and therefore the judgment is Affirmed.