Stewart v. Keith , 12 Pa. 238 ( 1849 )

Coulter, J.

There is substance in the first error assigned. The only contract between the parties was the assignment of the articles of agreement between Jared Shattuck, who it appears was the agent of Huidekoper, and Simeon Stewart, for the sale and purchase of a tract of land.

Stewart assigned the contract, and at the time of the assignment and at other times said the receipts for payment, when presented to Huidekoper, would bring a deed. He gave over to Keith the receipts at the time of the assignment. Keith went into possession of the land, which he still retains.

The evidence is very strong that the receipts do entitle Keith to a deed. One receipt of eighty-five dollars, which Shattuck gave to Stewart for the land he had purchased in part, was applied by Shat-tuck and Huidekoper to a previous purchase, made by Stewart and Peck, ^(a) and this is the receipt about which the difficulty occurs. It ought to be applied according to its terms, and that is on the purchase made by Stewart himself.

There was no covenant or warranty that Huidekoper would make a deed when the receipts were presented. Who would undertake to guaranty or stand over the whims and caprices of any man ? The fair meaning of the words invariably used by Stewart, “ that the receipts would bring a deed,” is, that they would entitle Keith to a deed. Keith did present the receipts, at which time this difficulty was made by Huidekoper—that the receipt for $85 was applied to a contract long anterior, made by Peck and Stewart, and that by the mere volition of Shattuck or Huidekoper.

Keith did not then deliver up possession of the land to Stewart, or offer to do it, and demand or elect to rescind the contract. But he kept possession,. and wore out a saw-mill; and now, after the lapse of a great many years, he seeks to recover back the money and rescind the contract, without even offering to reassign the contract or deliver up possession. This he cannot do; he has by no means entitled himself to rescind that assignment at his volition. The best thing he can do is to let Huidekoper bring his action; or, he may bring his own action on the’ contract, to compel a deed; and if Huidekoper shows that the receipts will not entitle Keith to a deed, then he will have his remedy over against Stewart. This he ought to have done long ago. The Court therefore erred in answering the first point of the plaintiff in the affirmative.

The Court ought to have answered the defendant’s fifth point in the affirmative. The statute of limitations commences to run from the time action has accrued, according to the plaintiff’s claim or showing. If he had any cause of action at all, it accrued when he presented the article assigned to him and the receipts, and Huidekoper refused to make the deed. There was nothing said or done afterwards by Stewart, which would lift away the bar of the statute. It was proved that he said afterwards, and that he said a few days before the trial, that the receipts would bring a deed. This showed the sense in which he understood that expression; that is, that in law they would bring a deed or entitle Keith to one. He knew, long before that time, that Huidekoper had refused to make one voluntarily, but he still believed that they fairly, justly, and lawfully entitled Keith to the deed.

The fourth point of the defendant ought to have been answered in the affirmative. It will both explain and illustrate itself in connexion with the foregoing remarks.

Judgment reversed, and venire de novo awarded.