Fullmer v. Poust , 155 Pa. 275 ( 1893 )

Per Curiam,

While the plaintiff’s agreement to sell and convey the lot to defendant for two hundred dollars, payable on or before November 15,1890, and his covenant to build thereon for her a house, of the size, etc., therein specified, for the further consideration of two hundred and fifty dollars, payable, fifty dollars within thirty days, and the residue on May 15, 1891, etc., are written on the same paper, they do not necessarily constitute an entire contract. The former is so distinct from the latter, as to time of payment, etc., that they may well be treated as severable. If the part to be performed by one party consists of several and distinct items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by the law, such a contract will generally be held to be severable. But, if the consideration to be paid is single and entire, the contract must be held to be entire, although the subject thereof may consist of several distinct and wholly independent items : 2 Parsons, Cont. 29, 31; Lucesco Oil Co. v. Brewer, 66 Pa. 351; Scott v. Kittanning Coal Co., 89 Pa. 231; Graver v. Scott, 80 Pa. 88; Morgan v. McKee, 77 Pa. 228. The distinction is clearly pointed out by the late Mr. Justice Williams in Lucesco Oil Co. v. Brewer, supra.

The consideration for the lot was paid within the time specified in the contract, and, shortly thereafter, upon urgent demand of the defendant, the deed therefor was executed and delivered. The payments on the building contract were not all promptly made, and, within the time required by law, plaintiff filed a lien against the house, etc., and afterwards issued this scire facias thereon.

The contract to sell and convey vested in defendant an equitable interest in the lot, on which a mechanic’s lien would attach. That equitable interest was enlarged into a fee by conveyance of the legal title; and the building covenant being severable from the contract to convey the lot, the plaintiff was clearly entitled to enforce his lien against the building, etc., for the purpose of collecting balance due him by defendant under the contract with her for erection of the house.

The specifications of error do not require special consideration. Neither of them is sustained.

Judgment affirmed.