Appeal from decree of Court of Common Pleas, Civil Division of Allegheny County, Jan. T., 1968, No. 2505, in case of Murray Hill Estates, Inc. v. John Bastin, Jr., and Marie A. Bastin, his wife et al.
Frank M. Van Ameringen, with him Van Ameringen, Girman & Del Sole, for appellants.
Coleman Harrison, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Cohen took no part in the decision of this case.
The defendants-appellants were optionees of a contract to purchase approximately 140 acres of land for $95,000. They assigned the option to plaintiff-appellee who exercised it and acquired title to the property. Consideration for the assignment was $500 plus a conveyance to appellants of 46 acres of the tract purchased.
Appellee's purpose in acquiring the option and in purchasing the land was to develop the acreage by subdividing it into lots for the ultimate erection of dwelling houses. For this purpose, as the court below found, "a source of water supply was indispensable." Hence the inclusion in the "Agreement To Assign Option", which the parties entered into, of paragraph 5, which provided as follows: "The parties hereto further agree that if, within a period of one and one-half (1 1/2) years from the date of execution hereof, the Township of East Deer has not caused an Authority to be created, or other method of financing instituted, for the installation of a system of water distribution to the lands which are the subject of this Agreement, that is, the Yost Estate, for a plan of lots similar to the plan of lots for this tract of ground already drawn by parties of the first part [appellants], and if the said Township of East Deer, by its created Authority, or by any other means of financing, has not let a contract for the installation of the water system, then, on demand
by party of the second part [appellee], the parties of the first part shall have the option to satisfy the demand of the party of the second part by either (1) Returning to the party of the second part, or its assignee or agent, whichever is the owner of the land, the consideration paid by party of the second part to the Yosts and taking back a Deed for the premises conveyed to the party of the second part, or its assignees, or (2) Deed to the party of the second part, or its designated assignee or agent, the land conveyed to the parties of the first part, as referred to in preceding paragraph 2 hereof, that is, the land lying to the North of Murrayhill Road, in said East Deer Township." [The 46 acres deeded by appellee to appellants as consideration for the option assignment.]
More than 1 1/2 years from the date of the agreement elapsed without any definitive action by the Township for the installation of a water system. Appellee thereupon demanded of appellants the fulfillment of either of the alternatives set forth in paragraph 5, above quoted. Appellants having refused the demand, this suit for specific performance was brought. After hearing, the chancellor entered a decree in favor of appellee. Exceptions to the decree were dismissed by a court en banc, and the decree nisi was made final. This appeal followed.
There is no dispute as to the above facts. Defendants raised several defenses by way of new matter, only one of which is pressed on this appeal. It is that the value of the 94 acres retained by plaintiff (and which is the subject of alternative (1) in paragraph 5 of the agreement above quoted) has been "drastically reduced" because, since the acquisition of the property, "two valuable dwellings" situated on that tract have been destroyed, one by fire and the other by vandalism. It is therefore contended that performance of alternative
(1) has become an impossibility, and that appellants are entitled to an abatement in the $95,000 purchase price paid by appellee (and which appellants would have to pay to appellee in exercising alternative (1)) commensurate with the value of the two dwellings. While appellants asserted that the destruction of the buildings took place while appellee was in sole possession of the premises, there ...