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tiff's part to make an adequate election on that particular day terminated both the right and the liability. As to any earlier notice to defendant of plaintiff's purpose, it is to be observed that the agreement calls for none, and that therefore none was required: Smith & Fleck's App., 69 Pa. 474, 480. There must, indeed, have been notice by plaintiff to defendant of his election to exercise his right: McMillan vs. Phila. Co., 159 id. 142, and that must, under the construction indicated, have been noticed on September 23, 1912, the inexorable rule being that "no amount of hardship, or impossibility, or illegality will avoid the bar of a condition precedent unperformed;" Allegheny City vs. Ry. Co., 159 Pa. 411, 419. Yet it is difficult to perceive any reason, either in equity and common sense, or upon a strict literal interpretation of the language in question, for denying to a positive declaration made by a plaintiff to defendant at any time during the running of the year that he, plaintiff, elected to insist, on September 23, 1912, on defendant's repurchasing the lot, the effect of a valid exercise, with respect to the time mentioned in the agreement, of the right conferred on him by it, provided the determination continued unchanged, its expression unrelinquished and the agreement itself unabandoned on that day. It has often been held (see, e. g., the recent case of F. & C. Co. vs. Harden, 212 Pa. 96) that an oral agreement made prior to the execution of a written contract, touching its subject-matter and operating down to and at the very moment of its consummation, may be shown as contemporaneous with it to control or qualify it. Why then should not plaintiff's letter of July 12, 1912, be treated as the exercise of his right or option under the agreement? Awkwardly worded, perhaps, its sense is nevertheless plain and unmistakable. It refers to the agreement as its basis and interpreter. In the light of the same, it is a distinct and unequivocal declaration that plaintiff elects to hold defendant to his promise to repurchase, that election to be effective on September 23, 1912. If, as in the absence (established by the verdict) of any inconsistent act or conduct in the interval is to be presumed, the intention to persist in the election thus declared continued, and the declaration of it held good, throughout, and down to and at the expiration of, the period allowed

for making the election, every formal as well as substantial requirement of the agreement in this particular was satisfied. Remaining, unretracted and unqualified, in the defendant's hands on September 23, 1912, it on that very day declared to him the plaintiff's election to exercise his right or option under the agreement, and in so far as its effect depended upon the time fixed therein, bound defendant as an election when made or reiterated. Nor is the addition, "I will give it into your hands," etc., the importation into the transaction of something foreign to the agreement, extending, restricting or otherwise modifying it, and therefore, under the doctrine of the civil laws: see Schuster, Princ. Germ. Civ. Law, p. 98, and in accord with several of the decisions first above cited, under our law also, depriving an election thus varying from the terms of the option of its efficacy as such. The addition referred to was but an expression of willingness, a gratuitous offer on plaintiff's part, to do something which might in defendant's judgment serve his convenience. If not acceptable to him, it was brutum fulmen, and upon the principle Utile per inutile non vitiatur to be disregarded.

Neither as an election on September 23, 1912, was what plaintiff did incomplete because of his omission to do anything required of him by the agreement in order to make it effectual, even under the principle that what is implied in a contract is as much a part of it as what is expressed: Slegel vs. Lauer, 148 Pa. 236, 244; Waslee vs. Rossman, 231 id. 219, 227. Not in express terms and not by implication does the agreement call for anything more from plaintiff than due notice of his election to exercise his right or option under it. It does not speak of, much less call for, a reconveyance of the lot on September 23, 1912. If it did, there might be implied a duty on plaintiff's part to tender on that day a deed transferring the title to defendant, (Vankirk vs. Patterson, 201 Pa. 90), which, however, even then, as intimated in Corson vs. Mulvany, 49 id. 88, 99, would not itself be the election, or any part of it, but simply a consequence of it. What the agreement speaks of, gives the plaintiff a right to and makes obligatory upon the defendant at plaintiff's election is a "repurchase" of the lot, which does not necessarily involve an immediate conveyance,—which

may be in any form answering the demands of the statute and satisfactory to the parties,—and into an all-sufficient contract for which the agreement itself is converted by plaintiff's election under it, as appears by various decisions, including the very recent one in Barton vs. Thaw, 246 Pa. 348, 357. Consistent with the non-requirement of a tender of conveyance on September 23, 1912, and correspondingly inconsistent with the idea that such tender was an indispensable element in plaintiff's election, is the further circumstance that the agreement, whilst fixing the price at which the lot was to be repurchased, has nothing to say about the time or mode of its payment. No doubt it must be understood that the "repurchase" was to be followed by a formal conveyance and thereupon by payment of the price fixed. But there is nothing to justify a holding that either of these things had to be done on September 23, 1912. On the contrary, the principle in point seems to be that, where the time for doing something under a contract is not determined by it, the law declares that it is to be done in a reasonable time: Dayton vs. Gunnison, 9 Pa. 347, 348; Smith & Fleck's App., 69 id. 474, 481,-which, there being no dispute as to the facts, is for the Court: Bank vs. Woodward, 18 Pa. 357, 362; Barbour vs. Fullerton, 36 id. 105, 107; Leaming vs. Wise, 73 id. 173, 176; Swan vs. Ins. Co.. 96 id. 37, 43; Patterson vs. Graham, 164 id. 234, 241. It may be added that there is nothing new in the distinction between time annexed to the exercise of an option and of the essence of it, and time with respect to the performance of the contract created by the due exercise of the option and not material. The distinction is plainly made in Smith & Fleck's App., 69 Pa. 474, 481, and as plainly obtains here.

We have, then, in this case an option turned, on September 23, 1912, by plaintiff's election to exercise it, into a mutually binding contract whereby defendant repurchases from plaintiff the lot adjoining 232 Clymer street at the price of $2,500, to be paid by defendant to plaintiff in a reasonable time after the date mentioned upon conveyance of the lot by plaintiff to defendant; on plaintiff's part a conveyance tendered and reoffered, and on defendant's part a non-acceptance of it and withholding of payment for a period exceeding any

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requirements to him to meet his undertaking. That such contract, there being no apparent change of conditions: see Remington vs. Irwin, 14 Pa. 143, 145; Tiernan vs. Roland, 15 id. 429; Sylvester vs. Born, 132 id. 467, 470, and plaintiff continuing willing and ready to convey: Smith & Fleck's App., 69 Pa. 474, 481, is susceptible of specific enforcement in equity, needs no demonstration. The action of assumpsit is virtually a bill in equity: Martzell vs. Stauffer, 3 P. & W. 398, 402; Hindmarch vs. Hoffman, 127 Pa. 284, 288; Brown vs. Title & Trust Co., 174 id. 443, 447, and brought for that purpose. Of course, equity would not compel defendant to pay without a conveyance to him, and hence the verdict against him in this action is so conditioned. The equitable character of the proceeding, however, draws after it still other consequences. With full knowledge of the existence of the $5,000 mortgage covering the lot in question, the parties, in the agreement of September 23, 1911, said nothing about it. Under the doctrine of Cadwalader vs. Tryon, 37 Pa. 318, 322, and Wilson's App., 109 id 606, 609, a covenant for the removal of that incumbrance by September 23, 1912, or at any time, cannot be written into the agreement as a condition of the repurchase provided for by it. Nevertheless, when it comes to payment the principle that specific performance will not be decreed where the result would be hardship, surprise, etc.: Graham vs. Pancoast, 30 Pa. 89, 97; Wistar's App., 80 id. 485, 495; Lynch's App., 97 id. 349, 353; Rennyson vs. Rozell, 106 id. 407, 412; Friend vs. Lamb, 152 id. 529, 533, would seem to indicate that equity would not, and that therefore this action cannot be used to, compel defendant to pay $2,500 for a conveyance of the lot subject to that lien. In accord with the teaching of Tiernan vs. Roland, 15 Pa. 429, 441; Sellers vs. Licht, 21 id. 98, and other decisions, however, this, being a remediable difficulty, did not destroy the obligation of the agreement of September 23, 1911, or the contract created on September 23, 1912, by plaintiff's exercise of his election. Moreover, admittedly, it has, in fact, been remedied by the cancellation of the mortgage. And hence the rule governs that in equity the decree, and consequently in an equitable action at law the verdict, are determined by the situation at the time of their entry: Shaw vs. Bayard, 4

Pa. 257, 258-9.

It seems needless to point out more specifically and in detail how and with what effect all this applies to the several propositions making up defendant's contention and to the rules here for disposition. The evidence contains nothing to suggest that on September 23, 1912, defendant was ready or willing to carry out his undertaking upon any sort of demand that might have been made. upon him by plaintiff, had he been successful in finding defendant when he sought him on that day. Defendant's subsequent conduct can only be looked upon as a refusal on his part. In these circumstances the defence interposed by him is a purely and highly technical one. It is not to be denied that he has the right to set up a technical defence. But even as such what he has set up does not seem to meet the case technically considered, not to mention its equities. Indeed, if the controlling principles and their bearing have been correctly apprehended, it would appear to follow that there is no escape from a conclusion holding defendant to his bargain in substantial accord with the verdict, except in one particular, in which it may be readily corrected. Not without having in view a possible need for such correction, the charge instructed the jury, in the event of their finding for plaintiff, to allow interest against the defendant from September 28, 1912, the date of the tender of a conveyance. The lot being at that time subject to the lien of the $5,000 mortgage, defendant was not obliged to make payment on that day. The letter of October 21, 1912, at which date the mortgage was cancelled, was not a categorical demand for immediate payment. Its tenor did not exclude the inference of plaintiff's assent to some further delay. The fact that he did not at once follow it up with legal proceedings strengthens that understanding of it and of his attitude. The institution of this suit, on the other hand, was a definitive demand by plaintiff for payment: Swearingen vs. Dair Co., 198 Pa. 68, 71. It is but fair to both parties to treat it as marking the point of time up to which plaintiff may and beyond which he cannot be supposed to have been willing to indulge the defendant, and hence from which interest on the payment withheld by defendant should properly be allowed. This means a reduction of the amount of the verdict by

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