Clever v. Clever

Opinion by Head, J., The fundamental error, into which the learned trial judge fell, was in disposing of the case as if the agreement, out of which the contention of the parties arose, had been reduced to writing and duly executed by both of them. No such paper appeared either in the pleadings or the evidence. The plaintiff declared that, by an oral agreement, he had undertaken to buy, from the defendant, a tract of land owned by the latter on certain terms and conditions assented to by both, and in pursuance of that agreement had paid $150 on account of the purchase money. He averred that by reason of the failure of the defendant to comply with the terms and conditions agreed upon, he had rescinded the contract, and was entitled to the return of the money he had paid. The defendant, in his affidavit of defense, admits that an agreement had been made “but denies that the same was an oral contract as alleged by the plaintiff and alleges that the said contract was wholly in writing.” He then makes profert of what he alleges to be a copy of the written agreement. This, upon its face, however, purports to be nothing more than an ex parte memorandum of the defendant, signed only by him, reciting the fact that he had made a sale — “ I have sold this day to Joseph Clever my farm,” etc.- — and reciting in turn certain terms and conditions, differing in some particulars from those averred by the plaintiff. Thus at the very threshold of the case the parties were at issue on the important question of fact whether the agreement, into which each admitted he had entered, had been reduced to a written instrument expressing the terms to which both had, in some way, indicated their assent. The oral testimony delivered by each party was in support of the averments in the statement and affidavit respectively. The plaintiff in his contention was corroborated by the facts, among others, that he had not signed the paper, that it had not been delivered to him, that it did not exhibit the customary [74] receipt declaring the money to have been paid on account of the alleged contract expressed in it, and that the terms therein set forth differed from those contained in a letter from defendant read in evidence. The defendant’s theory was in turn supported by the testimony of those who declared the paper was written by the direction and at the dictation of the plaintiff, that he fully assented to it, that it was left in the possession of one Russell at their joint request and for their joint benefit, etc. Thus when the testimony closed each party was found maintaining, to the extent of his ability, the same issue of fact he had tendered to his adversary in the pleadings. That such an issue of fact could be properly disposed of only by the jury seems to 'us to be a conclusion needing no argument to support it. Even if, arguendo merely, we concede the correctness of the statement contained in the opening of the brief of the learned counsel for appellee, that “the evidence is overwhelming that the memorandum of October 15th was dictated by the vendee, and the various terms thereof suggested by himself,” etc., this would not shift the function of determining a disputed fact from the jury to the presiding judge. And it is beside the mark to argue and cite cases to prove that if such a memorandum were to be made the foundation of a bill for specific performance, the statute of frauds and perjuries would not operate to prevent a decree. Our statute does not declare an agreement for the sale of land void “if not reduced to writing and signed by the parties.” It only enacts that “all leases, etc., made or created by livery and seisin only, or by parol, and not put in writing and signed by the parties so making and creating the same, shall have the force and effect,” etc. It does not follow, therefore, that because, in a proceeding for specific performance, the production of a memorandum in writing, signed by the vendor alone, meets the requirements of that statute, the mouth of the vendee is closed from asserting that the contract evidenced by the writing is not his contract, that he never assented to it or adopted it and that it was nothing but the self-serving declaration of the party whose act alone it, on its face, purported to be. The error into which the learned judge fell, in this respect, manifests itself not only in the answers to the points presented [75] on either side, but in the general charge as well, as the following excerpt from it shows: “We are satisfied that as no fraud, accident or mistake was alleged or shown in the making of the written contract, that it is incompetent, under the law, for the plaintiff, Joseph Clever, to contradict its terms, or to materially modify the contract by fixing the surrender of the lease of the peach orchard at a particular date, and making that of the essence of the contract.” The first, tenth, eleventh, twelfth and nineteenth assignments are sustained. After the jury shall have determined what the contract really was they must next determine, under the evidence, whether or not, the defendant, before the rescission by the plaintiff, had failed to perform, in any material particular, the obligations imposed on him by the contract as found. If so, then rescission was the plaintiff’s right and he ought to recover his money. If on this fact the finding be adverse to the plaintiff the defendant may have a verdict for any damages he suffered beyond the purchase money he received. The general rule is “that the measure of damages, where there has been a resale, is the difference between the price agreed to be paid by the vendee and that obtained on a resale. It is predicated of course of the undisputed facts in the case that the resale was a public one, fairly conducted, after full notice to the public and the vendee, upon the same or as advantageous terms as the first:” Bowser v. Cessna, 62 Pa. 148; Pepper v. Deakyne, 212 Pa. 181. It was said, however, in Freeman v. Husband, 77 Pa. 389: “If the terms were materially altered upon the resale, he (the purchaser) was thereby released, for he cannot be held to conditions that did not form part of his contract.” Hare v. Bedell, 98 Pa. 485; Weast v. Derrick, 100 Pa. 509. As the amount claimed by either party is small, the facts, although supported by contradictory evidence, within a narrow compass, and the principles of law applicable but few, a retrial, along the lines herein indicated, ought to result in a just and final disposition of the cause. Judgment reversed, and a venire facias de novo awarded.