M'Cormick against Crall, 6 Watts 207

The opinion of the Court was delivered by Sergeant, J. The first hill of exception is to the admission by the court below of proof of the tender of 1905 dollars, by the defendant to the plaintiff, in August 1831. The objection is, that there was no plea of tender, or payment of the money into court. There was, however, the plea of covenants performed and issue thereon, and under this plea any evidence was admissible that went to show that the defendant had offered to pay the purchase money, and thus to relieve himself from the payment of interest.

It was not strictly a tender; for in every legal tender, the party admits the money tendered to be due and payable. But here the defendant made the offer only on condition that the plaintiff made him a title, which he contended the plaintiff did not do. It was proof of readiness and willingness on his part to perform his covenant, provided the plaintiff performed the covenant on his part, and as such properly received.

The second bill of exception is to the admission of the defendant to prove that he served a copy of a notice on the plaintiff, in March 1821, of certain suits brought against Shoff on the recognizances with notice to the defendant. In receiving this proof the court has not gone further than many previous cases warrant, and indeed seems to be sanctioned by the constant practice in our tribunals. In Jordan v. Cooper, 3 Serg. & Rawle 575, it is said, that in Pennsylvania the practice is universal for a party to a suit to prove the service of notice, to produce papers and of taking depositions. In Kidd v.

Riddle, 2 Yeates 444, the plaintiff was held to be a good witness to prove the service of notice on a justice of the peace, thirty days before process issued. In Snyder v. Woelfly, 8 Serg. & Rawle 328, the plaintiff was admitted to prove the loss of a ticket, after other evidence given, that it had been in his possession. So, at the present term of this court, after evidence of the plaintiff’s possession of a promissory note, he was held to be competent to prove its loss. These and other cases seem to go quite as far as the present, and we, therefore, think this error not sustained.

The third bill of exception is to the rejection of the following evidence, offered by the plaintiff. The plaintiff gave in evidence, suit, No. 125, November 1820, M’Cormick v. Bryson’s administrators, and offered to accompany it with proof, that William Bryson, as agent of Mrs Mentzer, (one of the heirs of John Shoff, deceased,) received, in 1805, a large sum of money, alleging it to be due out of her father’s estate, from the plaintiff.

That the above suit was brought to recover back a portion of the money paid him, on the ground that she had, before that, been paid off, except a small sum which was agreed to be credited on the payments made by Hugh M’Cormick. That on the trial, defendant was present and was' a witness, when it was established that Mrs Mentzer had been paid; and on that ground plaintiff obtained a verdict for the excess paid her by him. All which was known to defendant, and the fact of the payment of incumbrances was there fully gone into, both on the trial, before the arbitrators in 1821, and in court in 1826.

The object of the proof was stated to be to show the knowledge of the defendant that the recognizances were paid. This evidence seems to have been rejected on account of its generality, in attempting to show what took place on a trial before arbitrators and in court, otherwise than by the pleadings and evidence in the cause; and also in offering to show, not the acts and declarations of the defendant, but his knowledge of every thing that occurred, in or out of the record.

The proper kind of evidence to prove matters which have been in controversy on a former trial, is, in the first place, the evidence given on that trial, and then in order to affect a third party with it, his acts and declarations ought to be shown.

This was the course the cause eventually took after this bill had been sealed; for, the offer being renewed by the plaintiff to go into evidence, that upon the trials in these suits the whole claims upon the recognizances in Cumberland and York were, by consent of counsel, taken into consideration, investigated, and decided, accompanied with the evidence given on the trials, the defendant’s counsel made no objection to that part of the offer relating to the evidence given on the trials, and the court considering that it embraced, substantially, the import of the whole, admitted it.

The plaintiff then relinquished it. I come now to the remaining errors, which are to the answers of the court. These it is not necessary to repeat from the paper book, because we are of opinion, that there has been no error shown. In relation to the claim of interest, which was the real matter in dispute between these parties, the court stated the law correctly to the jury, leaving them to judge of the credit due to the testimony, and mider the circumstances of the case, to give interest or allow it; and whether it should or should not be allowed, was a matter for the jury to determine.

The case was a peculiar one. The plaintiff, in 1809, articled to convey land, then subject in his hands to various incumbrances, the defendant’s intestate covenanting to pay, by a certain time, or on the delivery of an indisputable title clear of all incumbrances. The intestate was not bound to pay or secure the money until such title was given.

He, however, paid various sums of money, from time to time, on account of the instalments; but the plaintiff delayed compliance with his stipulation; and matters so continued until the intestate died, the right to the land descending to his children, and the task of attending to the contract devolving on the defendant, his administrator.

In the year 1820, the plaintiff being pressed for money, though, by his own declaration, unable to complete the title, induced the defendant to pay up a large additional sum, making, with prior payments, somewhere about the amount then due, and the plaintiff executed deeds which were agreed to be left in the hands of an attorney as escrows, to be delivered, according to the testimony of one witness, only when the title should be complete.

After this a moiety, or more of the claims on the recognizances remained, outstanding on the record, without satisfaction entered, and various suits continued to be brought upon them, and were depending a long time. A purchaser under a contract for a good title, is entitled to a marketable title, a title which he may sell and dispose of to others, or if he chooses to keep the land, may feel satisfied that he can settle it securely by deed or will, on his children or others. The vendor is bound to take the necessary steps and use due diligence to place the title on a footing that will leave it beyond dispute.

This the plaintiff- expressly engaged to do, by his

article and by accepting payment under it. The vendee here could not, himself, make a legal title to another whilst his vendor declined to do so to him, and proclaimed himself unable. The defendant interposed no difficulties and affected no delay; he seems to have been not only willing, but anxious to comply and settle the contract; as well for his own relief, as administrator, as for the satisfaction of the family, who must have been subjected to inconvenience and prejudice, by the long delay.

The plaintiff does nothing to make the title, from 1809 to 1820; even after the agreement of 1820, the deeds were suffered to lie in the attorney’s hands; suits were brought on the recognizances, and process served on the administrator; and the claims on them remained in the same unsettled and unsatisfactory state; though the death of the widow occurred in 1827, and the remainder of the money became then payable. At length, in 1831, the defendant tendered the 1905 dollars, a sum which, in addition to former payments, exceeded the amount of the principal of the purchase money.

The plaintiff still procrastinated, declined receiving it, said circumstances were not yet settled, and the defendant placed the money in bank, where it has since remained. The subsequent demand and offer by the' plaintiff, to give a refunding bond or security, was one which the defendant was not bound to accept in lieu of the title stipulated. These, with other facts, were circumstances for the jury to decide how far it was just and equitable in a case so peculiarly situated to charge the defendant with interest.

For, although, the general rule is, that if lands are sold by articles and the vendee enters into possession, he must pay interest, though the deed was not made at the time required, yet this is not universally so. There are cases where it may be left to the jury to say whether the plaintiff shall recover interest; as where there has been wilful and vexatious delay, or gross laches in the vendor, in consequence of which, the. purchase money lies unproductive. 6 Binn. 437; 16 Serg. & Rawle 268.

The plaintiff also assigns for error, that the court instructed the jury, that the conditional verdict, asked for by the plaintiff, could not be found by them. This was, that the jury should give a verdict for the plaintiff with condition, that it should not be executed till the lost deed was supplied, and thus dispense with the necessity of producing a good and sufficient deed on the trial, in lieu of the one that was lost.

A conditional verdict has been employed in Pennsylvania to effect an equity which could not be reached by the ordinary form of the verdict; but there is no instance in which it has been adopted, to relieve the plaintiff from a difficulty occasioned by his not being ready to establish those facts which are put in issue in the cause. Should we give in to this practice, we should gradually change the system of our pleadings and proofs, encourage remissness in suitors, and produce an increased delay and litigation. The court below was right in refusing to give the instruction asked. Judgment affirmed.