Hammer & Dauler v. McEldowney , 46 Pa. 334 ( 1863 )

The opinion of the court was delivered by

Thompson, J.

This is a bill in equity praying for the specific execution of an alleged contract for “the sale of the houses on Smithfield street,” without any designation of the houses where situate on the street mentioned, of what size, dimensions, or material, or the area of ground to be embraced, and without in fact disclosing to whom they belonged at the date of the alleged contract, excepting as it might be inferred by the receipt of the respondent for $20, in part payment of the purchase-money.

It is a settled rule in equity, that the specific performance of a contract will not be decreed unless its terms are clear and capable of ascertainment from the instrument itself: Story’s Eq. Juris. § 767. So courts of equity will not ordinarily entertain bills for the specific execution of contracts with variations or additions, or new terms to be made and introduced into them by parol: Id. 770. It requires no argument or illustration to bring this imperfect or indefinite contract within these rules. It is open and apparent upon its face that it requires much aid from parol evidence to perfect it, besides, nothing whatever was done towards its completion but the payment of $20, when the contract, if contract it be, was made.

There was no hardship in the case upon which a chancellor might pause, excepting only the handing over the trifle of money mentioned, and this would not necessarily be lost by a failure of the remedy invoked. The complainant will have his remedy at law to recover whatever damages he may be entitled to ; an item of which will probably be the money paid. We think the plaintiff’s bill presented no ground for the relief sought in equity.

We are also of opinion that the general demurrer of the respondent should not have been overruled. It is a rule of pleading in equity, that a demurrer lies, where the objection to the bill is apparent on the face of it, or from the defects of its frame, or in the case made by it: Mitf. Eq. PL, by Jeremy, 218; Story’s Eq. Pl. §§ 448, 449, 647. As already stated, the case made by the bill was for the specific execution of a contract for the sale of real estate resting partly in writing and partly in parol. The defence that it was not a case for a decree we think was sufficiently raised by the demurrer.

And now, to wit, November 5th 1863, the decree of the Court of Common Pleas is reversed, and the bill of the complainants, the appellees, is dismissed at their costs.