protest to the plaintiffs, or call upon them to comply in respect of tax and water rent payments, with the terms of their contract. While there is a sharp conflict in the testimony on this point, we accept the plaintiffs' version as the more credible. By their acceptance of these weekly payments of principal and interest, the Stauffers clearly recognized the contract as in full force and effect. We think that, in these circumstances, the sellers could not terminate the contract without demand on the plaintiffs for performance.
The case, in our view, falls squarely within the principle of the Pennsylvania cases that where time for the performance of a contract is extended from time to time, with no intention manifested to hold to literal performance, a party cannot rescind without a demand for strict compliance within a reasonable time. Riddle Co. v. Taubel, 277 Pa. 95, 120 A. 776; Hopp v. Bergdoll, 285 Pa. 112, 131 A. 698; Parish Mfg. Corp. v. Martin-Parry Corp., 285 Pa. 131, 131 A. 710; Dravo Contracting Co. v. James Rees & Sons Co., 291 Pa. 387, 140 A. 148; Parish Manufacturing Corporation v. Martin-Parry Corporation, 293 Pa. 422, 143 A. 103; Warren Tank Car Company v. Dodson, 330 Pa. 281, 199 A. 139; C. Trevor Dunham, Inc. v. Nemitz, 82 Pa.Super. 382; McGlinn v. Jackson, 86 Pa.Super. 562; Haggerty v. Metropolitan Life Insurance Company, 131 Pa.Super. 87, 198 A. 822; Matevish v. Ramey Borough School District, 167 Pa.Super. 313, 74 A.2d 797.
Shilanski v. Farrell, 57 Pa.Super. 137, is of no aid to the sellers, since, there, time was expressly and emphatically made the essence of the contract.
The real purpose behind the sellers' purported termination of the contract is painfully apparent from the most cursory consideration of the facts. Not until they had the Lawrences safely committed, and for a higher price, did the sellers indicate any intention to hold the plaintiffs to a literal performance of their covenants. Speaking of a comparable situation in Cleveland v. Salwen, 292 Pa. 427, 433, 141 A. 155, 157, the Supreme Court of Pennsylvania used language most appropriate in the present case: 'Here certainly was no proof of good faith on the part of the property owners in their efforts to oust their tenants. Thomas v. Boyle, 265 Pa. 487, 109 A. 232. 'Forfeitures are odious in law, and are enforced only where there is the clearest evidence that that was what was meant by the stipulation of the parties. There must be no cast of management or trickery to entrap the party into a forfeiture.' Helme v. Phila(delphia) Life Ins. Co., supra (61 Pa. 107), page 111.' See Rea v. Eagle Transfer Company, 201 Pa. 273, 276, 50 A. 764.
We hold, therefore, that Stauffers' purported termination of the contract of sale was a breach of the contract and that they are liable to the plaintiffs for their damages resulting from the breach. Plaintiffs, on the other hand, are liable to the Stauffers for the real estate taxes and water rent on the premises for the year 1957, and for electricity consumed on the premises during plaintiffs' occupancy. Plaintiffs are not liable to the Lawrences on their counterclaim.
It is undisputed that Stauffers undertook and assumed to sell to Lawrences not only the real estate, but also plaintiffs' foodstuffs, supplies and other personal property in the diner at the time of the sale. Charles W. Stauffer testified that he sold the place 'lock, stock and barrel'. When he was asked by the trial judge why he thought that the foodstuffs were his to sell as part of the 'lock, stock and barrel', Mr. Stauffer stated: 'Why, to get back some of the money that I had to pay out for the electric light bill and the water rent and the taxes. I thought that would compensate for some of that'. (Mr. Stauffer counterclaimed for these same items). Mr. Lawrence freely admitted that he used these foodstuffs, etc., in his operation of the diner. It is admitted, too, that none of the defendants ever compensated the plaintiffs for these goods.
Defendants have not referred us to any provision of the contract of sale, or to any principle of law -- and we know of none -- which would entitle them to retain the plaintiffs' personal property on the premises, even in the case of a legal termination of the contract. Defendants clearly, were guilty of a conversion of this property, and are liable to the plaintiffs in damages.
Conclusions of Law
1. The Court has jurisdiction of the parties and of the subject matter.
2. The contract of sale of October 9, 1956, between the plaintiffs and the defendants Stauffer was a valid and subsisting contract.
3. Defendants Stauffer, in the circumstances, could not terminate the contract without a demand on the plaintiffs for performance, and their attempt so to do was a breach of the contract.
4. Defendants Stauffer are liable to the plaintiffs for their damages resulting from the breach of contract.
5. Plaintiffs are liable to the defendants Stauffer for the real estate taxes and water rent on the premises for the year 1957, and for electricity consumed on the premises during plaintiffs' occupancy.
6. Plaintiffs are not liable to the defendants Lawrence on their counterclaim.
7. Defendants were not legally entitled to retain and use plaintiffs' personal property on the premises at the time of plaintiffs' dispossession, and their act in so doing was a conversion.
8. Defendants are liable to the plaintiffs for their damages resulting from the conversion of plaintiffs' property.
Now, March 30, 1960, the Clerk is directed to place the within case for trial on the issue of damages at the head of our next civil non-jury list.
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