Appeal from decree of Court of Common Pleas of Lancaster County, Equity Docket No. 13, in case of Marlin E. Knable and Shirley Mae Knable v. Walter Z. Bradley and Elsie W. Bradley.
Bernard J. Myers, Jr., with him Zimmerman, Zimmerman, Myers & Gibbel, for appellants.
Menno B. Rohrer, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell dissents.
In June of 1958, Walter S. Bradley and Elsie W. Bradley (Bradleys) and Marlin E. Knable and Shirley Mae Knable (Knables) entered into a written agreement for the sale of a 100 x 200 foot parcel of land located immediately adjacent to the Knables' homestead in Elizabeth Township, Lancaster County. At the request of Bradleys, the agreement had been drafted by a justice of the peace and was signed by the parties at separate times and places. Upon signing the agreement, the Knables entered into possession,
cleared the parcel of brush and bramble growing there and have since kept the field grass and weeds mowed. The Knables' primary purpose in acquiring the parcel was to have permanent access to a well located thereon.
As regards the purchase price, the agreement provided: "In consideration of which the purchaser does hereby promise and agree to purchase said premises, and to pay or cause to be paid unto the owner the sum of Twelve Hundred seventy-five ($1275.00) dollars to be paid as follows: Fifteen ($15.00) dollars on the signing of this agreement, the receipt of which is hereby acknowledged (which deposit shall be forfeited to the owner in case of default by the purchaser in the performance of the terms of this agreement) and the balance of the purchase money as follows: Fifteen ($15.00) dollars per month which shall include interest to be paid hereon with the first payment due May 1st, 1958 and monthly thereafter. All monthly payments shall be forfeited to the owner in case of default by the purchaser in the performance of the terms of this agreement."
Settlement was to be made on or before March 1, 1965, and the Knables were to pay real estate taxes on the parcel for the year 1958 and thereafter. It should be noted that the parties did not include a provision that time was material to this agreement, and in the absence of such a stipulation, equity will not regard the element of time as essential: Cochrane v. Szpakowski, 355 Pa. 357, 49 A.2d 692 (1946).
For a period of two years the Knables faithfully performed their undertaking by making regular monthly payments. In June of 1960, no payment was forthcoming, but on July 29, 1960, the Knables paid $30, for June and July of 1960. Thereafter, payments were made and accepted at irregular intervals of two or
three months. The last payment of $45 was accepted by the Bradleys on August 17, 1962. At this point all payments were current for the first 52 months of the term of the agreement, and including the $15 paid upon execution of the agreement, the Knables had paid $795 of the purchase price. No payments were received thereafter but no complaint was heard ...