Goldstein v. Markovitz , 276 Pa. 46 ( 1923 )

Opinion by

Mr. Justice Simpson,

By a written agreement appellees contracted to sell, and appellants to buy, a property in tbe City of Pittsburgh, settlement to be made on or before March 15, 1921, tbe title to be taken subject to a lease expiring April 1, 1921. Tbe term of this lease, as drawn, extended beyond that date, but, before tbe time fixed for settlement, tbe tenant bad, in writing, surrendered all of tbe term after April 1, 1921.

On March 15, 1921, appellees were at tbe place fixed, ready to carry out tbe terms and conditions of their contract, but appellants did not come. Tbe parties then agreed to make settlement on March 28,1921; again appellees appeared and appellants did not. Tbe next day, appellees duly tendered tbe necessary papers and requested settlement; but appellants refused to make it, and caused tbe agreement of sale to be recorded.

Their claim now is that they were not informed of the surrender of the balance of tbe tenant’s term; but since appellees were only required to be ready, as they were, to make settlement as prescribed by the agreement, and appellants also were required to be ready at that time, and were not, the former cannot be visited with a penalty for the latter’s default. Moreover, this claim appears to be an afterthought, appellants’ original excuse being that appellees were not able to give actual possession of the property. This they were not required to do, but only, as already stated, to deliver possession subject to a lease expiring April 1, 1921, and that they were able and ready to do.

Later, after the tenant had actually vacated the property, appellees again made a tender, and appellants again refused to carry out the agreement, this time claiming damages for delay in the delivery of possession.

Appellees thereupon filed the bill in equity in this case, praying a cancellation of the recorded agreement of sale; and appellants filed a cross-bill, praying specific performance of the agreement and damages for the delay. The court below found the facts hereinbefore stated; entered a decree as prayed for in the bill and dismissed the cross-bill; whereupon the proposed purchasers took this appeal.

Since there was ample evidence to support the foregoing findings of the court below, we must approve them (Colwes v. Meyer, 272 Pa. 323), and, following our decision in Octoraro Water Company v. Garrison, 271 Pa. 421, that equity has jurisdiction to remove a cloud upon a title, caused by recording an agreement of sale, must affirm the decree.

The decree of the court below is affirmed and the appeal is dismissed at the cost of appellants.