Newell's Appeal , 100 Pa. 513 ( 1882 )

Mr. Justice Gordon

delivered the opinion of the court May 22d 1882.

On the 16th of April 1877, Augustus W. Newell, the defendant below, leased to Abraham Simon, the plaintiff, a certain lot of ground in the borough of Bradford, for and during the term of one year, with the privilege of the extension of the term for four years. There was also contained in this lease a provision by which Simon had the privilege of purchasing the leased lot at any time within one year from the date of the lease, on payment of the sum of four hundred dollars.' The ^plaintiff entered upon, took possession of the property and erected thereon a dwelling house, and such out-buildings as were considered convenient and suitable, and, as we have it from the report of the master, before the expiration of the first year, he not only notified the defendant, that he elected to take the property according to the provision contained in the lease, but tendered to him the whole amount of the purchase money. Newell, instead of complying with his contract at once, put off the execution of the deed from time to time, on the pretext of other engagements, and finally refused altogether so to do. This bill was brought for the purpose of enforcing this contract, and the court below entered a decree in favor of the plaintiff. We really cannot see what else could have been done under the facts of the case.

The contract is plain and unambiguous; the plaintiff complied with his part of it; he erected valuable improvements, and is in the possession of the premises, as he has a right to be. If now equity has no power to enforce the execution of this agreement; if the plaintiff’s only remedy is to turn out, abandon liis possession and improvements, and for redress resort to an action oil the case, we had better abandon our equity practice and revert to our old forms. But it is said^there is no mutuality in this contract, and therefore, the case fails within the ruling of Bodine v. Glading, 9 Har. 50. Admitting the premise thus put forth, and conclusion results as of course. But this premise is false, for the contract, as it now stands, is not merely one-sided. Just as soon as Simon gave the defendant notice that he elected to take under the provision for the sale of the property, he as effectually bound himself to pay for it as though such had been the original contract, and at any time after the 16th of April 1878, the vendor could have tendered a deed and compelled such payment. From that time the lease was at an end and the contract was one of sale, and as such the vendor could have enforced it. And suppose we refuse to carry into effect the decree of the court below; that is, refuse to compel the vendor to execute a deed; what will be the result? The vendee has performed his part of the contract, and upon that he can stand. The lease is of no effect; there can be no distress for rent or recovery under the landlord and tenant acts; has, therefore, the vendor no remedy? Certainly he has. He may maintain assumpsit on the contract, or bring an equitable action of ejectment, but in either case, before he can recover he must tender a deed. "Why then talk about the one-s.idedness of the contract, or the want of mutuality in remedy. It is true, that for a consideration which he thought to be sufficient, Newell gave Simon the power to determine, within the year, whether the contract should continue as a lease, or become operative as a sale. But when'Simon signified his. election he not only.bound Newell, but bound himself, and this just as much so as though it had, from the ontstart, been an absolute contract of sale.

Bodine v. Glading was a very different case. There, there was a sale of real estate at public auction, and, by the terms of the sale, the purchase money was to be paid within fifteen days, or the property might be resold at the risk and expense of the purchaser. The purchaser refused to pay his bid, and a bill was filed to enforce payment. It was held that it could not be sustained, and this for the reason, that after the time fixed for the payment, the vendee had no remedy whatever for the enforcement of the contract against the vendor; hence the want of that mutuality, in the way of remedy, which is required to sustain specific performance in equity. This may be very good law, though we are not disposed to commit ourselves to the full text of that case by an unqualified approval; but it certainly does not fit the case in hand. This doctrine would have applied in point, had Newell attempted, by bill, to have enforced the contract of sale after the time fixed for the purchase, and without Simon’s election to pay for the property.

But such is not the case now before us. There was an election by the plaintiff, and that election perfected the contract, and clothed the parties with equal rights and powers of remedy.

The decree of the court below is affirmed, and the appeal dismissed at the costs of the appellant.

Chief Justice Sharswood dissented.