Appeal of Shafer , 15 W.N.C. 407 ( 1885 )

' Mr. Justice Teunkey

delivered the opinion of the court, October 5th, 1885.

This suit is for a decree of specific performance of an alleged oral contract for the sale of a tract of land containing one hundred and thirty acres, made by Samuel Shafer in his lifetime with Jesse Shafer, Jr. The Master finds that there is no evidence of such contract having been made, and the court finds “ obscurity, uncertainty and insufficiency in the evidence of the alleged contract, which it is indispensable should be established by clear and definite testimonj'-.” Both agree that specific performance cannot be decreed. The learned judge was of opinion that compensation may be allowed, especially under the pleadings, because the defendants in their answer say that, if said Samuel ever contemplated anything in connection with said farm, it was that said farm might be substituted for and stand in place of the Littlestown property in his last .will on the same terms and conditions, and on the further condition that said Jesse should pay the difference between what the Littlestown property was sold for, and the purchase money of said farm; and they do not admit he so contemplated.

The bill avers that, in 1869, Samuel Shafer contracted to give the Littlestown property to Jesse Shafer,.Jr., upon condition that he should pajr the interest annually on $1,400 to said Samuel, and also support Elizabeth Shafer during her life and provide for her burial at her decease. Let it be conceded that there is proof of such contract. In 1875, said Samuel executed his will wherein he devised the Littlestown property to said Jesse to hold for his life on condition that he support Elizabeth Shafer during her life and provide for her burial, and, on failure to perform such condition, the property to vest in Jesse Shafer, Sr., on the same condition; the remainder to a son of Jesse Shafer, Jr. In 1876, Samuel Shafer sold the Littlestown property, and purchased the farm. Jesse Shafer, Jr., removed to the farm, and supported Elizabeth Shafer while she lived, and at her death provided for her burial. On what terms he occupied the farm does not appear. No change was made in the will. There is no evidence of a contract relative to the farm between him and Samuel Shafer. Although the Master erroneously considered the testimony of Jesse Shafer and Barbara his wife as if by one person only, he finds that it would be insufficient if they are considered as two independent witnesses. “ Their testimony consists of conversations with Samuel at which Jesse, Jr., was not present; there is no evidence that Jesse, Jr., knew of these conversations.”

The plaintiff’s father testifies that, after the purchase of the farm, Samuel Shafer said: “ I have bought this property, I intend to pay for it, for Jesse and my sister Betsy, and I have never seen it, and may be I never will.” And at another time he said: “If Jesse kept Betsy as long as she lived, he was to have the property, Jesse was to have it as long as he lived, and, after his death, his children were to have it.” His mother testifies to similar remarks by said Samuel when he was conversing with her. Other witnesses heard Samuel make remarks corroborative of those proved by the plaintiff’s parents. Such talk, taken in connection with the circumstances, is insufficient to establish a contract for sale of the land in question. Nor did Jesse Shafer, Jr., understand that he had a contract for this farm. After the death of Samuel, and when Elizabeth Shafer was living, he claimed of the administrator a certain sum for the support of said Elizabeth, which 'sum was less than the price of the farm, or of the Littlestown property. Pie consulted counsel, and sought to enforce payment of the debt. Upon the evidence, there is no foundation for a bill in equity to compel conveyance of the farm to the. plaintiff.

The answer denies that there is any contract relative to said farm, and denies “that the said Samuel ever did, after the execution of said will, make any valid or binding provision or arrangement whatever in behalf of said parties, or any or either of them; and they state that, if the said Samuel- ever did, at any time after the date of said will, contemplate making any provision in behalf of said parties, or any or either of them, said contemplation was never carried into effect.” Then follows the statement of what said Samuel may have contemplated, not contracted. Surely the pleadings do not establish the plaintiff's right to recover compensation in this proceeding.

The plaintiff could not maintain a bill for specific performance of the contract for the Littlestown property.’ He acquiesced in the sale of that. For aught that appears, he could have - brought' an action at law, not for recovery of that property, but for recovery of compensation for the support of Elizabeth Shafer. .He files a bill for specific performance of a contract of sale, and fails to prove a contract. Instead of uncertainty and obscurity respecting some of the terms of a contract, it is certain no contract was made, if absence of evidence makes certain its non-existence. Why should compensation be decreed? “ It is well established that, whenever a court of equity has jurisdiction, if the relief prayed for cannot for some reason be granted, a compensation in damages may be awarded in lieu thereof. Thus, if a plaintiff was originally entitled to specific performance of a contract of sale, but it so happens that before the final decree it becomes impracticable for the defendant to make a conveyance, so that the specific relief prayed for in the bill cannot be decreed, the court will not turn .the plaintiff over to seek his damages in an action at law, but will proceed directly to decree him compensation : ” Masson’s Appeal, 70 Pa. St., 29. In that case, when the suit was begun, the plaintiff was entitled to relief in equity, the .parties agreed that a preliminary injunction should not be issued; the injury done by the defendant had become permanent when the cause was reached for final decree, and therefore, . on principle as well as on the agreement, the court decreed compensation. When the defendant has put it out of his power to perform the contract, the bill will be retained, and .it-will be referred to a Master to assess the damages-: Woodcock v. Bennet, 1 Cowen, 711. Where the proof clearly establishes a contract of sale, but time of payment or other detail respecting the payment of purchase money is left uncertain, and the purchaser took possession, paid part of the purchase money, and made valuable improvements on the faith of the contract, the bill may be retained for the purpose of allowing the plaintiff compensation, if he has not a full and adequate remedy at law: Aday v. Echols, 18 Alabama, 353. These cases indicate on what grounds compensation will be decreed when specific performance is impracticable. In Pennsylvania, a party is not entitled to relief in equity where he has a full and adequate remedy at law.

The plaintiff’s claim is merely for compensation for the support of Elizabeth Shafer. He made no contract for the farm. He has no claim for improvements made on the faith of a contract. Samuel Shafer may have contemplated devising the farm to him for life with remainder to his children,.and he may have expected such devise would be made. The contemplation of one and the expectation of the other do not constitute a contract.

Decree reversed, and bill dismissed, appellee to pay all costs.