Hopp v. Bergdoll

Opinion by Mr. Justice Walling, This is an equitable action by a purchaser for specific performance of a contract for sale of real estate. On July 21,1922, the defendant, Emma O. .Bergdoll, agreed in writing to sell plaintiff the property on the southeast *114 corner of Oxford and Thirtieth streets, Philadelphia, for $15,000, of which $3,000 was to be paid on or before September 21, 1922, $30 thereof being paid as hand money. The $12,000 balance of purchase money to be secured by a mortgage at six per cent for five years. Time to be of the essence of the agreement unless extended by mutual consent in writing. By the agreement possession was to be given on the date last named; as matter of fact, plaintiff took possession on the date of the contract (July 21, 1922) and began changing the building, which had been a saloon, into an apartment house, at an expense of several thousand dollars. Defendant consented to these changes and on October 2, 1922, became surety for plaintiff for the cost of the heating system and later paid for the same amounting to $2,615.92. These changes were completed in the fall of 1922, and thereafter plaintiff demised the premises to various tenants and received the rentals therefor. During the following year she paid defendant sundry small sums amounting in all to $670, for which receipts were given, usually designating the same as interest or interest on the $15,000. Both parties treated the agreement as in force after the time stated for its fulfilment had expired, until March 14, 1924, when defendant tendered plaintiff a deed and demanded the immediate payment of the $3,000 and a mortgage for the balance of purchase money, declaring that otherwise the contract was null and void. This not being complied with, defendant, on April 4th, following, retook and has since retained possession of the premises, collecting the rents, etc. On September 2, 1924, plaintiff filed her bill in this case, to which an answer and replication were filed. From the pleadings and evidence the chancellor found the facts somewhat more at large than as above stated and entered a decree nisi for specific performance; after a hearing on exceptions, the trial court, on June 5, 1925, entered a final decree in favor of plaintiff, and therefrom defendant brought this appeal. *115 The decree was rightly entered except as to slight modifications. Had the contract been consummated on September 21, 1922, the mortgage would have been interest bearing, the agreement expressly so stipulating; hence, plaintiff should be charged with interest on the $14,970 from that date until defendant retook possession of the property on April 4,1924. This is especially true since plaintiff had the use of the property during that time, but the $670 should be credited on the interest. Plaintiff should also, according to the terms of the agreement, pay her pro rata share of the taxes for the year 19i22, that is, should reimburse defendant the equivalent of the taxes from September 21, to December 31, 1922. The other complaints are without merit. The parties having treated the agreement as in force after the expiration of the time specified, it became indefinite as to time and neither could terminate it without reasonable notice to the other: Riddle Co. v. Taubel, 277 Pa. 95, 97; Welsh v. Dick, 236 Pa. 155; Penna. Mining Co. v. Smith, 207 Pa. 210; Hatton v. Johnson, 83 Pa. 219; Shilenski v. Farrell, 57 Pa. Superior Ct. 137. This rule is especially applicable here as defendant permitted plaintiff to expend money on improvements after the time limit had expired. The chancellor properly held that defendant’s sudden demand for $3,000 and a mortgage for balance was unreasonable, and, under the manner in which the business had been done, that the time elapsing between such demand and April 4th, when defendant took possession, did not afford plaintiff a reasonable opportunity to consummate the purchase. There being no change to defendant’s prejudice, the delay of five months in filing the bill did not deprive plaintiff of the right to equitable relief: Penna. Mining Co. v. Martin, 210 Pa. 53; Ginsburg v. Collins, 84 Pa. Superior Ct. 221. As defendant had declared the agreement null and void and retaken the property, a tender by plaintiff be *116 fore bringing suit was not necessary: Boyd v. Hoffman, 241 Pa. 421; Whiteside v. Winans, 29 Pa. Superior Ct. 244. The decree is modified by adding after the words “April 1st,” therein, the words, “and the proportion of the taxes for 1922, from September 21, to December 31, and also interest on the $14,970 from September 21, 1922, to April 1, 1924, less the $670 heretofore paid.” And as so modified the decree is affirmed; appellant and appellee each to pay one-half of the costs on this appeal.