Appeal from decree of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1971, No. 1341, in case of John J. Tolan and Sarah A. Tolan, his wife v. Sarah O'Malley.
James Victor Voss, with him Neely and Voss, for appellants.
John J. Kennedy, Jr., for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Pomeroy concurs in the result on the ground that the conduct of the parties constituted an effective rescission of their agreement to sell.
The appellants, John J. Tolan and Sarah A. Tolan, his wife, instituted this action in equity seeking specific performance of a contract to sell real estate in O'Hara Township, Allegheny County, Pennsylvania. After extended hearings, the chancellor entered an adjudication and decree nisi dismissing the complaint. Subsequently, a court en banc dismissed exceptions to the chancellor's adjudication and made the decree nisi final. This appeal followed.
The facts found by the chancellor, all supported by the record and affirmed by the court en banc, are as follows:
On or about February 8, 1970, John J. Tolan and Sarah O'Malley, the appellee, reached an oral agreement whereby appellants agreed to buy and appellee agreed to sell the property involved for $22,000. Thereafter, appellants caused to be prepared an Agreement of Sale which they presented to the appellee for her signature. She refused to execute the agreement, because it did not contain a closing date. After her rejection of the agreement, a closing date of June 15, 1970, was agreed upon by the parties and inserted by appellants' representatives. Thereafter, the appellee executed the agreement. At the same time, appellants delivered a check in the amount of $1,000 to the appellee as hand money, but said check was never cashed. A few days subsequent to June 15, 1970, the closing date set forth in the agreement, John J. Tolan visited the appellee at her home and stated that the date for closing had passed and that, therefore, there was no longer a binding agreement between them. The appellee agreed with that statement. There were no further communications between the parties until September 1, 1970, two and one-half months later, when John J. Tolan contacted the appellee to inform her that he had a buyer for the property he then lived in. On October 7th, John J. Tolan informed the appellee in writing that a closing date with reference to the subject property had been set for October 13th. At the time set for the closing, the appellee failed to appear to tender a deed to appellants. This action was instituted on November 10th.
In its opinion in support of the final decree, the court en banc below concurred with the chancellor's determination that time was of the essence in the Agreement of Sale, and, therefore, appellants, having
failed to perform under the agreement on or before June 15, 1970, the contract was no longer binding upon the parties. The court en banc went on to state that even if time were not of the essence of the subject Agreement of Sale, the parties by their mutual consent cancelled and rescinded the same by their conduct at the meeting shortly after June 15, 1970.
The appellants contend that time was not of the essence in the Agreement of Sale and further that there was no mutual rescission. The Court in Carsek Corp. v. S. Schifter, Inc., 431 Pa. 550, 554-55, 246 A.2d 365, 368 (1968), stated that: "'It is a well established general principle in equity that time is not ordinarily regarded as of the essence in contracts for the sale of real property unless it is so stipulated by the express terms thereof, or it is necessarily to be so implied.' 55 Am. Jur., Vendor & ...