Nicholson v. Ertel

Opinion by Mr. Justice Stewart, This was a contract for the sale and purchase of certain lots in the city of Philadelphia. It provided that in case the title should be defective in any manner the vendors would take all necessary steps to have the defect remedied, and should they not be able to do so within a reasonable time, the purchaser should have the option of taking the title as it is, or having the money paid on account refunded. [110] The title being found subject to certain restrictions which the vendors were unable to remove, they filed their bill for a cancellation of the contract. The vendee filed a cross bill for specific performance with abatement in price for the defect in the title. A full recital of the facts appears elsewhere. The learned chancellor thus states his conclusions as to the law of the case: “The defendant had on December 15, 1909, the right to take the plaintiffs' lots at the contract price of $80,000 subject to the restriction which binds No. 114 South Twelfth street or abandon his purchase thereof and have his payment of $3,000 refunded to him. He had no right under the agreement of sale to insist on a conveyance of the lots at a price lower than the contract price, viz., $80,000.” “As the defendant failed within a reasonable time after notice of the plaintiffs' inability to remove the building restriction on No. 114 South Twelfth street to exercise his right to take a conveyance of the lots subject to the said restriction, and make settlement therefor at the stipulated price within the time provided for by the agreement of October 9, 1909, all his rights under that agreement lapsed save the right to require the return of the sum of $3,000, which he had paid to the plaintiffs. In view of the fact that he received and still retains a check for that amount, it cannot be said that the recording of his agreement with the plaintiffs in the office for recording deeds, etc., was a step necessary to enforce or secure his rights thereunder. The recording of that instrument was, under the circumstances, unjust and inequitable, constituting a cloud upon the plaintiffs to the property therein referred to.” These conclusions rest upon a construction of the agreement which necessarily limits the vendee’s remedies for failure of title, confining him to the alternative in the contract, acceptance of such title as the vendors could make at the stipulated price, or the abandonment of the contract upon the return of the money paid. It is the appellant’s contention that the language of the agreement does not import an exclusion of such remedies at law or equity as a [111] vendee would be entitled to for a breach of a covenant to convey on the part of a vendor. The argument in support of this view strips of all meaning and force the provision in the contract that "should the title be defective in any manner, the vendors will take all necessary steps to have such defect remedied, and should the vendor not be able to do so within a reasonable time the purchaser shall have the option of taking the title as it is, or have the money paid on account refunded.” With much apparent confidence it is asserted that this provision in the contract is wholly superfluous, since a vendee always has, in a case where the title proves defective, the option of taking the title as it is or having the money paid on account refunded, and that therefore the provision is entitled to no consideration. The argument very plainly begs the question. We may concede that the provision secures to the vendee no remedy which he would not have had otherwise; but it by no means follows from this that the provision is unmeaning and superfluous. Any such conclusion would necessarily eliminate from all consideration in this connection the vendors, and could rest only on the unwarranted assumption that except as the provision advantages the vendee it is to be disregarded. Any restriction upon a vendee’s remedy in case of a vendor’s default is manifestly to the advantage of the latter, and if a purpose to so restrict can fairly be derived from the language of the agreement between the parties, such purpose being as legitimate as any other, it is to be given effect. Since it is impossible to derive from the stipulation here any purpose to advantage the vendee, we must either derive from it a purpose to advantage the vendor in some way, or treat the clause as unmeaning and superfluous. We are at liberty to adopt the latter view only in case we find the former unreasonable and repugnant to an evident intent. The parties have themselves inserted each provision in the contract, and accordingly, if possible, the contract must be construed as to give effect to each provision inserted therein: Title Ins. & Trust Co. v. Ellis, 192 Pa. 321. [112] While this contract does not in express terms limit the vendee to any particular remedy for the vendor’s default, yet no other purpose being discoverable from what is expressed, and the language being sufficient to warrant a reasonable inference of an intention to restrict, such construction must prevail, for it is a settled rule of construction that the insertion in a contract of one or more things of a class implies the exclusion of all not expressed, although all would have been implied had none been expressed. In thus interpreting the present contract it is given an effect which defeats the appellant’s whole contention. We entirely concur in the conclusions reached by the learned chancellor, that inasmuch as the appellant failed within a reasonable time after notice of the vendor’s inability to remove the restriction from the property to be conveyed to exercise his right to take subject to the restriction, and make payment therefor at the stipulated price within the time provided by the contract, all his rights under the contract save the right to have the money paid refunded, lapsed. The view we have thus taken of the case makes it unnecessary to pass upon the question of abatement in price for defect in title. The appellant himself being in default, and his rights under the contract being forfeited, this question does not arise. The assignments of error are overruled, the appeal is dismissed and the decree is affirmed.