Allen v. Woods

1. Where cumbersome articles are to be delivered at a specified time in performance of a contract, and no place is fixed upon for their delivery, the vendor is not bound to carry them to the vendee, but must apply to him a proper time before the day of delivery to appoint a reasonable place for delivery. 2. Where, in an ejectment by the holder of the legal title, the defendant sets up an equity under an article of agreement, it is incumbent on him to perfect it by doing or offering to do, or showing a readiness and ability to perform all that he was bound to do; and if liens exist against the land to excuse delay on his part, he should be ready to pay as soon as they are removed. 3. Where the defendant agreed to pay for Certain real estate in bricks, and accepted an order in favor of third parties and delivered to them a quantity of bricks; it was admissible for the plaintiff, the holder of the legal title, to show that the defendant had sued for and recovered the value of the bricks from the persons to whom he had delivered them, and therefore had paid nothing for the real estate in question. 4. Where the defendant agreed to pay for real estate in bricks, and the defendant had neither offered the bricks since the plaintiff was able to make a perfect title, nor was ready to furnish them, their value was properly assessed in money, and time afforded to raise it. The deed being filed in Court for delivery on payment, the defendant was not interested in the appropriation of the money by the Court. 5. Where a period of four months was fixed upon in the verdict for payment by the defendant, and judgment was not entered thereon till the expiration of the four months, execution issued immediately after the judgment became absolute was not premature.

ERROR to tbe District Court of Allegheny county. This was an ejectment by William Woods v. James Allen, brought to July Term, 1852, for a lot of ground in the borough of Sewickleyville. Both parties claimed under John Dixon. On part of the plaintiff was shown a judgment against Dixon, on 3d December, 1850; execution thereon and sheriff’s deed to the plaintiff acknowledged on 27th March, 1852. The defendant claimed to have purchased the premises from Dixon in May, 1849, by articles of agreement, and that he had taken possession, put in a crop, and had burned brick upon it. The agreement was not produced, but a witness testified that Allen was to deliver to Dixon for the lot in dispute, 50,000 bricks, one half in one year, and the other half in the year following. The bricks were estimated by the parties at $4 per thousand. On 1st of May, 1850, Dixon drew an order on Allen, the ven-dee, for the first half of the bricks, which was on that day accepted by Allen. The payees in the order were Miller & Bush. Miller & Bush received from Allen about fifteen or sixteen thousand bricks, but Allen afterwards brought a suit against Miller & Bush for a balance of book account, and got a judgment for $20 or $25. Miller & Bush afterwards brought suit against Allen on the accepted order, and recovered judgment for $100, whereupon Allen appealed, but a nonsuit was afterwards entered. A witness testified that Allen objected to the order for the bricks, and that it was rejected bj the alderman in determining the suit of Allen v. Miller & Bush. Dixon tendered a deed for the premises to Allen in the summer or fall of 1850, which the latter refused, alleging the existence of liens, a list of which was exhibited at the time. A notice of Allen’s claim of title was read at the time of the sheriff’s sale. There was no proof of a tender of the deed subsequent to the fall of 1850. _ _ ' _ _ On the trial of the ejectment, the plaintiff’s counsel asked leave to file a deed to Allen for the premises. On part of the defendant, several points were submitted, the third of which was, That the consideration of the premises being bricks to be delivered at defendant’s brick-yard in Sewickley, the plaintiff could not recover the price of the bricks in money until he had made a reasonable demand of defendant to furnish the same. This point was negatived. On part of the plaintiff it was contended that if the agreement between Dixon and Allen had been made as alleged, the plaintiff was still entitled to recover the purchase-money, or the estimated value of 50,000 bricks, viz., $200, which was alleged by the plaintiff to be unpaid. April 18, 1853, verdict was rendered for the plaintiff to be released on defendant paying $200 into court, in four months, $100 thereof to be paid to plaintiff, absolutely, upon the delivery of a deed for the land; and the other half, viz.: $100, to be held by the court until the dispute between Allen & Miller and Bush should be determined: the Court to order payment of said $100, t-o whomsoever is legally entitled thereto. On April 19th a motion was made for a new trial, which on 25th June was dismissed. On July 7th, the verdict fee being paid, judgment was entered on the verdict. August 20, 1853, judgment absolute was entered, with leave for hab. fac. to be issued. Error was assigned to the answer to the third point. 2. In permitting the jury to take into consideration the controversy between Allen & Miller and Bush. 3. In entering judgment on the verdict. 6. That the absolute judgment was premature. 7. The hab. fac. issued before four months had elapsed from the time of judgment. It was alleged that on a contract for delivery of specific articles, the creditor must make demand at the debtor’s place of residence: 2 Watts 140, Hamilton v. Calhoun. The jury ought to have passed upon the controversy between Allen & Miller and Bush, and not have left it for future settlement: 16 Ser. B. 245, Bagley v. Wallace. In this case no place was fixed upon for tbe delivery of the bricks. But if it had been, it was not necessary for the plaintiff to make demand, but the defendant should have shown that he was ready to comply, and continued to be so: 7 Watts 380, Fleming v. Potter; 3 W. ‡ Ser. 295, Barr v. Myers. In the ease of Hamilton v. Calhoun, there was neither time nor place of delivery agreed upon, and the articles depended on the plaintiff’s election. The evidence relative to the payment of Dixon’s order in favor of Miller & Bush was proper in determining the amount due under the contract between Dixon & Allen. Verdicts in ejectment should receive a liberal construction: 7 Barr 274, Tyson v. Passmore; 17 Ser. B. 393. The verdict was not uncertain; the defendant’s liability was determined. The direction that part of the money should be subject to the order of the Court gave no power that the Court did not possess without the direction. The verdict was rendered on 18th April, and the defendant was to pay in four months. On 20th August judgment was entered. Where defendant fails to pay at the time fixed by the verdict, the plaintiff is entitled to the possession: 7 F.j Ser. 137, Treaster v. Fleisher.