O'Connell v. Cease
O'Connell v. Cease
Opinion of the Court
Opinion by
Plaintiff’s bill prays for the specific performance of a real estate option, as follows, viz: “Scranton, Pa., July 28, 1919. Received of Timothy O’Connell, Jr., one
“Signed, sealed and delivered the aforesaid date. M. A. Cease, (seal)”
Plaintiff avers that he was ready and willing to complete the purchase and, within the time specified, tendered performance as best he could owing to the fact that defendant at first secreted himself and later refused to carry out the contract. Defendant filed a demurrer to the bill, which, upon due consideration, the court below sustained and dismissed the bill; from which decree plaintiff brought this appeal.
The first ground of demurrer, viz: “The written agreement, dated July 28,1919, and attached to the plaintiff’s bill of complaint and marked ‘Ex-A,’ is obscure and indefinite in that it fails to describe the property of the defendant with sufficient clearness and accuracy,” is well
Undoubtedly real estate may be described by reference to a plan, a plot, a lot number, or a prior conveyance, or by name, such as “Hotel Duquesne property” (Henry v. Black, 210 Pa. 245); “The Fleming Farm on French Creek” (Ross v. Baker, 72 Pa. 186); “The Byers place” (Ranney v. Byers, 219 Pa. 332); or by other sufficient identification (Haupt v. Unger, 222 Pa. 439; Felty v. Calhoon, 139 Pa. 378). Had the option in the present case referred to the real estate merely as the property formerly of the Dutton Silk Co., situate on Main street, etc., in place of making a futile attempt to describe a lot, and then confining the reference to the improved silk mill to “formerly Dutton Silk Co. mill” without mentioning any land as appurtenant thereto, plaintiff’s contention would stand better. While parol evidence cannot supply an omission in the terms of the written contract, it may be admitted to apply the description to the subject-matter thereof: Title G. & S. Co. v. Lippincott, 252 Pa. 112; Whiteside v. Winans, 29 Pa. Superior Ct. 244.
As our conclusions above stated lead to an affirmance of the decree, it is unnecessary to consider the other questions raised by the demurrer.
The decree is affirmed at the costs of appellant.
Reference
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- Equity — Specific performance — Contract to sell real estate — Insufficient description — Reference by name — Pleadings—Bill—Allegata et probata — Statute of frauds — Parol evidence. 1. Equity will not decree the specific performance of a contract unless its terms are clear and capable of ascertainment from the instrument itself; nor will it decree such performance where the agreement is so ambiguous and contradictory in its terms as to make its meaning indefinite and uncertain; nor unless the writing contains an identification of the property. The essential basis of a decree for specific performance of a contract to convey real property is a definite present agreement in regard to a specific piece of land, clearly designated as present to the minds of both parties, and to be conveyed by one to the other. It is not the function of a court of equity to make a contract for the parties nor to supply any material stipulation thereof. 2. An agreement to sell real estate will not be specifically enforced, where the land is merely described as “the property situate in the Borough of Duryea, County of Luzerne, State of Pennsylvania, bounded and described as follows, to wit: Being Lot Number......in Square or Block Number......and situate upon street called and known as Main Street, said lot is......feet wide in front and rear, and......feet in depth and improved silk mill and all sills machinery, tools and equipment formerly Dutton Silk Mill.” 3. Where the bill to enforce such -an agreement includes in its description one lot and part of another but does not allege that the mill covers the entire lots, and prays for the conveyance of such land, but not for the conveyance of the silk mill, a sufficient doubt arises so as to preclude specific performance, inasmuch as the description of the lot in the contract is bad, and that of the mill not sufficient to include the lots set out in the bill. 4. Eeal estate may be described by reference to a plan, a plot, a lot number, or a prior conveyance, or by name, but plaintiff cannot enforce specific performance by making a futile attempt to describe a lot, and then confine the reference to the improved silk mill to “formerly Dutton Silk Mill,” without mentioning any land appurtenant thereto. 5. While parol evidence cannot supply an omission in the terms of the written contract, it may be admitted to apply the description to the subject-matter thereof.