Tyson v. Eyrick

Citations

• 141 Pa. 296
• 21 A. 635
• 1891 Pa. LEXIS 1070

Syllabus

<p>[To be reported.]</p> <p>(a) By a parol contract, the plaintiffs sold to the defendant a lot of ground to have a frontage of fifty feet. Several weeks after the making of the contract, the plaintiffs’ agent, at the request and in the presence of the defendant, staked off the lot sold, and marked the boundaries thereof upon the ground:</p> <p>1. The sale and the subsequent designation of boundaries, although distinct in time, were component parts of the contract, and the contract having been so far performed as to be taken out of the operation of the statute of frauds, the defendant had a right to insist upon a title in conformity therewith.</p> <p>2. Wherefore, it appearing that the agent, by mistake, included in the lines marked by him one foot of ground belonging to a stranger, the defendant, in an action for purchase money, was entitled to recoup damages for the failure of title thereto, although the plaintiffs tendered to him and put on file a deed for the fifty feet to which they had title.</p> <p>3. The measure of the right of recoupment, in such case, is the proportionate value of one foot of ground, to be computed upon the basis of the consideration of the contract; but no damages can be allowed for a misplacement of buildings in consequence of the mistake, it being the defendant’s duty before making such improvements, to ascertain and know his lines.</p> <p>(6) The defendant testified that the verbal agreement for the sale specified the depth of the lot to be conveyed as one hundred feet. In designating the boundaries, plaintiffs’ agent marked off a lot ninety-five feet in depth. The land to the rear was owned by the plaintiffs. The deed which they tendered to defendant was for a lot ninety-five feet deep:</p> <p>4. The defendant having accepted the agent’s designation of boundaries, and having based thereon his claim for recoupment in connection with the side lines of the lot, he was bound by it as to the depth; and it was error to submit to the jury, a