Chandler v. Chandler , 220 Pa. 311 ( 1908 )

Opinion by

Mr. Justice Fell,

The bill in this case was by a wife for the specific performance of an agreement of separation entered into with her husband. It was provided by the agreement that the parties should live apart, that the defendant should pay to a trustee named for the use of his wife $75.00 on the first day of each month during her life, and that he should be entitled to receive the income from a dwelling house the title to which was in her name. The agreement went into effect March 26, 1904, and the first payment under it was made on April 1, following. It appears from the findings of the court that during the month of April the .plaintiff purchased goods at a number of stores, to an amount pearly equal to the allowance, and had them charged to the defendant. She pursued the same course, .notwithstanding his objection and protest, in May. A part of these bills he paid without making any deduction from the monthly allowance, which was paid in full on the first days of the four months following. By agreement with the trustee he deducted from the October payment the amount of the outstanding bills. Thereupon the plaintiff notified the tenant of the dwelling house to pay the rent to her. The defendant then stopped payments under the agreement of separation, filed a bill to restrain bis wife from selling the house or collecting the rent thereof, and instituted proceedings for a divorce. The plaintiff brought an action for divorce and obtained an allowance of alimony pendente lite ; brought an action at law to collect arrearages due by the terms of the agreement of separation and filed the bill in this case.

Fortunately we are required to consider only one phase of the controversy that has arisen. The only question presented by this appeal is whether the plaintiff under the circumstances is entitled to a decree for the specific performance of the agreement. “ Jurisdiction to enforce specific performance is always exercised subject to general equitable considerations and will not be applied to cases where the complainant does not come in with clean hands or where equities exist on the other side which would render it unjust to grant the relief: ” Bispham’s Equity, section 376. It is incumbent on a plaintiff who seeks performance of a contract to show that he has performed or is ready to perform, and a default in this respect is a ground on which the action may be resisted: Fry on Specific Performance, 453; Datz v. Phillips, 137 Pa. 203. The plaintiff in this case willfully and persistently violated the contract she asks to have enforced, and by taking the rents of the dwelling house deprived the defendant in part of the means with which to pay.

The decree is affirmed at the cost of the appellant, without prejudice to her right to proceed at law.