Commonwealth Trust Co. General Mortgage Investment Fund Case , 357 Pa. 349 ( 1947 )

The Act of May 24, 1945, P. L. 944, provides that ". . . when the court shall hereafter approve a contract of a fiduciary requiring approval of court, neither inadequacy of consideration, nor the receipt of an offer to deal on other terms shall, except as otherwise agreed by the parties, relieve the fiduciary of the obligation to perform his contract or shall constitute ground for any court to set aside the contract, or to refuse to enforce it by specific performance or otherwise." (Italics supplied.) Thus the statute permits the parties to agree, if they so desire, that the fiduciary shall be relieved of his contractual obligation upon receiving a higher offer. Even if, therefore, as the majority opinion asserts, the approval by the court of Shapiro's bid operated to vest in him an equitable title to the property, he could, under the Act, agree to a modification of his rights. That he did in fact so agree appears from the provision in his contract with the Trust Company that "If the Vendor receives a higher or better offer than the terms of the within Agreement it has the right to revoke the within Agreement at any time prior to the consummation of the within sale and to refund the payment made on account of the purchase price without further liability to the Vendee."

The majority opinion states that there was no consideration for Shapiro's consent thus to convert the Trust Company's obligation into a conditional option. But the agreement was under seal and, if there is any principle of law firmly established in Pennsylvania, it is that a seal imports consideration: Conrad's Estate, 333 Pa. 561, 3 A.2d 697;Yulsman v. DuBois, 346 Pa. 310, 30 A.2d 323; Rynier Estate,347 Pa. 471, 32 A.2d 736; Independent Coat Co. v. Michalowski,349 Pa. 349, 37 A.2d 518; Central-Penn National Bank ofPhiladelphia v. Tinkler, 351 Pa. 123, 40 A.2d 389. In Conrad'sEstate, it was said (p. 563, A. p. 699): "It is well settled that a seal imports consideration. This is more than a mere presumption; the seal takes the place of proof of consideration and in the absence of fraud makes the promise enforceable without it. The defense of want of consideration is not available in an action on a sealed instrument." The sole exception to this rule is where there is evidence of fraud; only in that event will proof of consideration be required:Conrad's Estate (p. 563, A. p. 699); Yulsman v. DuBois (p. 312, A. p. 324). In the present case there is no suggestion of fraud; the most that can be said is that the parties misunderstood the law, but a mistake of law, whether unilateral or bilateral, does not relieve parties of their contractual obligations. The majority opinion cites Jeffers v. Babis,304 Pa. 281, 155 A. 878, but there the court pointed out that the defendant was guilty of fraud, thus bringing the case within the recognized exception; moreover the plaintiff in that case proved failure of consideration on the part of the defendant which, as distinguished from want of consideration, is a permissible defense in the case of every contract.

My disagreement with the majority does not depend solely on the fact that the agreement between Shapiro and the Trust Company was under seal. The agreement itself reveals that there was consideration for whatever concessions Shapiro made therein. The order of the orphans' court accepting his bid did not pretend to cover all the terms of the sale; on the contrary it provided for a "new agreement" to be entered into by the parties, and, as finally executed, the agreement contained numerous provisions not embodied in the court's order. To pick out now a single clause and assert that there was no consideration for that particular covenant violates in my opinion, an elementary principle of contract law, namely, thatall of the clauses of a written agreement must be regarded as constituting consideration for one another.

I would affirm the decree of the court below.