Hovey v. Howard , 177 Pa. 323 ( 1896 )

Opinion by

Mr. Justice McCollum,

We fire unable to discover any particular force in the contention that the bill should have been dismissed on the ground that Howard had no notice, before it was filed, of Hovey’s purpose to rescind the contract. Howard had assigned to James T. Richards, by deed dated November 30, 1889, and duly recorded in the proper office, whatever interests he acquired under his contract with Hovey. Before the institution of the suit Hovey had tendered to Richards all the money he had received from Howard on account of the contract, and it is clear that in the event of rescission Richards was the party entitled to receive it. He was made a corespondent with Howard in the suit and the same was heard and disposed of on its merits. There is no discernible cause for setting aside the decree if the findings on which it was based were warranted by the evidence.

The material question in the case is whether the learned court below erred in sustaining and entering a decree in conformity with Hovey’s contention in regard to the nature and terms of his contract with Howard. Hovey claimed that the contract was oral and limited to certain lots of ground situate at Nicetown and numbered on a certain plan of lots belonging to him, while Howard claimed that the contract was written and included all the ground “ bounded by Blabon Carpenter on a line 220 feet northwest of Nicetown lane, and the Richmond branch of the Reading R. R.” Hovey also claimed that the description in the receipt was erroneous and unauthorized by him; that it was made through the inadvertence of his clerk and that immediately upon the discovery of the mistake he sought from Howard and was refused a correction of it. It was further claimed by Hovey that before the contract in question was made he had sold to other parties four lots upon the plan which were expressly excepted from his sale to Howard, and that the land he sold to the latter was sold subject to the easements which the plan gave to the owners of other lots located upon it. These claims were also denied by Howard whose principal insistence was that the land sold to him was correctly described in the receipt.

In all the issues of fact made by the bill and answer the findings of the master are against the appellant. Those findings were warranted by the evidence and approved by the court. They established the contract as claimed by the appellee and show his willingness and the appellants refusal to comply with it. They also show that the latter sought to acquire through the mistake of the clerk that which he knew was not included in their contract. Surely under these circumstances he ought not to complain of the rescission of the contract and the payment of the money received thereunder to the party who by his own deed was entitled to it.

Decree affirmed and appeal dismissed at the costs of the appellant.