#### The Plymouth Manufacturing Company’s Appeal. Dietrick’s Estate.

1. Dietrich, in 1860, by articles reciting that Derby was about to erect on land adjoining Dietrich’s a building, of dimensions specified, “to be used as a foundry and machine shop, according to the general acceptation of the term,” and that it was necessary to have more land to lay down a railroad track and switches, etc., contracted “ in consideration of the erectipn and completion of said building,” and §50, to make to Derby “a good and sufficient deed” for a lot designated whenever the building should “be erected and the business aforesaid shall be in operation.” *Held,*that as soon as Derby had erected the building as described, and the business in operation, he was entitled to a deed upon payment of §50.

*1482. Derby erected the building, took possession of Dietrich’s lot, and both he and Dietrick died; after which the business was put into operation and the shops and lot sold; afterwards the business was changed to a planing-mill. *Held,*that the purchaser was entitled to a deed from Dietrich’s representative.

3. The consideration was the performance of a precedent condition, which did not require that the business should be continued.

March 11th, 1874.

Before Agnew, C. J., Sharswood, Mercur, and Gordon, JJ.

Appeal from the Orphans’ Court of *Luzerne*County, of January Term, 1874.

This proceeding commenced by the petition of the Plymouth Manufacturing Company praying for a decree for the specific execution of a contract made by George H. Dietrick in his lifetime with John F. Derby for the sale of a lot of land in the borough of Plymouth, Luzerne County; the petitioner¿ having become the owners of the contract.

The petition, which was filed November 27th, 1871, set out that on the 1st of March, 1860, George H. Detrick entered into a contract' with John F. Derby as follows:

“ Whereas, John F. Derby, of, etc., is about erecting a building on lands of Henderson Gaylord and Draper Smith, in Plymouth, etc., of about two hundred feet in length and about thirty feet in width, to be used as a foundry and machine shop, according to the general acceptation of the term: And whereas it is necessary to have more land to lay down a railroad track and several switches for the convenience of building and repairing railroad cars, and a connection of the said railroad and switches with the Lackawanna and Blooms-burg Railroad.

“ Now George H. Deitrick, etc., agrees, etc., in consideration of the erection and completion of said building, and the farther consideration of the sum of fifty dollars, etc., that he will make and execute unto the said John F. Derby, his heirs or assigns, a good and sufficient deed for the following described piece of land, situated in Plymouth aforesaid, whenever the said building as aforesaid shall be erected and business above mentioned shall be in operation, being part of the middle tier of house lots in said Plymouth, bounded a.s follows, viz., Gaylord’s railroad running to the river on the west, and by lands of Gaylord and others on the south, and by lands of McAlarney on the east, and by fence of the Lackawanna and Bloomsburg Railroad on the north, being about one hundred and fifty feet on the line of the Gay-lord railroad on the west, and about ninety feet wide on the line of lands of Gaylord and others on the south, and about one hundred and sixty-five feet on the line of McAlarney’s land on the east, and about eighty-five feet wide on the line *149of the Lackawanna and Bloomsburg Eailroad on the north. Also, to hold and use in common with the said George H. Dietrick, a strip of land ten feet wide, extending from the southwest corner of the aforesaid described piece of land to the river. The said George H. Dietrick reserves a small building now standing on the lot, used for a butcher shop; also, a privilege to move, the same to the south end of the premises, where it may remain two years, and then to be removed from the land altogether.”

The petition further averred :

“That in execution of said contract, said J; F. Derby immediately erected upon the premises, efe., a building of the dimensions referred to in the contract, and finished the same, and commenced and put in operation the business mentioned in said contract, qnd also paid to said George II. Dietrick the sum of fifty dollars mentioned in said contract, or the assigns of said J. F. Derby now stand ready, and have offered, aud do now offer to pay the heirs of said George H. Dietrick the said sum of fifty dollars, and the said George H. Dietrick thereupon delivered possession of said lot of land described in said contract to said J. F. Derby, and the said J. F. Derby entered upon said lot described in said contract, and at his own expense put down switches and railroad tracks upon the same, and connected them with the Lackawanna and Bloomsburg Eailroad, and by himself and his assigns since had constantly continued to use said lot as a whole for the purposes and uses of said business mentioned in said contract. That subsequently said J. F. Derby died, and his executors made an Orphans’ Court sale of the real estate of said J. F. Derby, deceased, and sold the same, including the land above referred to and described in said contract, to the Plymouth Manufacturing Company. . . . That said company is now seized of said lot of land described in said contract, etc.

“ That the said contract is so far executed that it would be against equity to rescind the same; and that no provision for the performance of said contract was made by the decedent, George H. Dietrick, in his lifetime ; and as your petitioners have shown that said J. F. Derby and his assigns have entered and made valuable improvements upon said ■premises, pursuant to said contract; and that the Plymouth Manufacturing Company are now and at all- times have been ready to pay any balance of purchase-money due on said premises to the administrator and heirs at law of said George H. Dietrick; your petitioners therefore pray the honorable Court to award a citation to A. J. Dietrick, administrator as afoi’esaid, and to the- heirs at law of the said *150George H. Dietrick, deceased, etc., commanding them to appear in court and answer this petition, etc., and your petitioners further pray the decree of the court'for a specific performance of said contract according to the true intent and meaning thereof, and that'a conveyance may be made under said decree by the administrator unto your petitioners of sai*d land, etc.”

Dietrick died in 1862.

Derby died about March 4th, 1865. Letters testamentary on his estate were granted to George Brown and Albert Gabriel, the executors named in his will.

On the 27th of November, 1871, Court granted rule on the heirs and representatives of George H. Dietrick, deceased, to show cause why decree of specific performance should not be made of the contract.

The rule was enlarged from time to time, and on the 14th of December, 1872, no answer or replication having been filed, E. G. Scott; Esq., was appointed commissioner to take testimony.

The testimony was as follows :

*G. F. Derby*testified: At the date of the contract Derby was in possession of the- land in controversy; it was then a garden ; on land adjoining the land in dispute, bought by him from Gaylord and Smith, h¿ built a machine shop 210 feet long, part of it 30 feet wide, and part 60 feet wide; he there manufactured mining machinery, boiler fronts, steam-pipe connections, grate-bars, screen and schute plates, etc., also mining cars. The business .conducted there was that usually done in a foundry and machine shop. Derby conducted this business until he died. During that time he was in possession of the land described in the contract. Before his death he sold it to William L. Lance; he continued in possession about two years, and conducted the same kind of business ; at times he employed thirty odd hands ; Lance put a switch over the premises contracted for, running into the shop and connecting with the Lackawanna and Bloomsburg Railroad; after Lance, the Derby estate came again into possession of the premises, and the representatives of the estate carried on the same business; it was then sold to the Plymouth Manufacturing Company ; they carried on the same kind of business ; the switch put down by Lance remained as long as that company owned the property; the business could not have been carried on ufithout the lands mentioned in the contract.

On cross-examination the witness said: The business was commenced in the building about 1862 ; about'ten men were employed at the first; these were increased in 1863 to about fifteen ; Derby was sick and poor, and the business could not *151be carried on very extensively. - The Plymouth Company manufactured engines, screens, cars, etc.; they employed about thirty men. A planing mill was started after that company sold to Harvey Brothers & Kern; it was continued a planing mill. The business has not been carried on from beginning to end on the scale contemplated when the shop was built. Derby took possession of the premises irt 1859 by using them as a garden a'nd piling lumber on them, and so used them during his lifetime; he did not build any switch or railroad across it; no part of the. shop was built on it; the land, — at the hearing, — was used for piling lumber on.

*George Brown,*an executor of Derby, testified to the same facts substantially. He said, also, that after the death of both Dietrick and Draper, he paid Dietriek’s administrator what was due from Draper’s estate on other matters, and at the same time offered to the administrator of Dietrick the $50 money-consideration with interest;'he said the contract had not been complied with because — as the main objection —cars had not been built. When this occurred did not appear.

This witness also testified that the land in dispute was necessary in order to enable them to get cars into the shop for the business carried on in it. The shop was ready for bnsiuess in Derby’s time ; the machinery that might have been put in had not been put in. To the extent Derby carried on the business, this piece of land was not necessary. The first switch was built whilst Lance was there ; very near the business was done that was contemplated when the buildings were erected; they were capable of doing considerable more.

*James B. Peirce,*testified: That until the property was bought by Harvey & Kern the business was what is usually done in foundry and machine shops. The Plymouth Company built cars, cast wheels and other heavy castings; put up two heavy engines, built some boilers, manufactured some pine lumber; the foundry and machine shop did a larger business than the machine shop; the Bloomsburg and Lackawanna Company used the switch quite as much as the Plymouth Company did; other lumbermen and merchants also used the switch. Turntables vrere put into the shop to be used with the switch; the land in dispute was almost indispensable to the full operation of the shop. The Plymouth Company sold to Harvey & Kern, but the deed had not been made. The shop could not be connected with the railroad by any other switch.

There was other testimony for the petitioners which also *152tended to show that until the property had been sold to Harvey & Kern the shop had been used as a foundry and machine shop, part of the time doing a very large business in that line; and that the switch over the land in dispute was reasonably necessary for the connection of the shop with the railroad, and that the switch could not be conveniently constructed in any other place.

For the respondents the testimony was that the property was in the possession of Harvey & Kern, who carried on a large lumbering business there, occupying the building which had been used by Dei’by for his machine shop. The evidence of both petitioners’ and respondents’ witnesses showed that before the filing of the petition Harvey & Kern purchased the property on which the shop was erected, and also the land in dispute, removed most, if not all the machinery necessary for a foundry and machine shop, and changed the business to a plaining mill and lumberyard.

The question was whether the consideration of the contract was a condition that the building stipulated for should be continued as a “ foundry and machine shop,” and if it should not be so continued the condition would be broken, or whether upon “the erection and completion” of such building the condition would be performed, and the vendee entitled to specific execution of the contract.

There was no Master in the case. It was heard on the testimony; and on the 8th of September, 1873, the Orphans’ Court refused to decree specific execution of the contract and dismissed the petition, Dana, A. J., delivering the opinion, fiz.:

“. . . . After their purchase Harvey Brothers & Kern took out the machinery, and changed the building and the business from a foundry and machine shop, ‘ in the common acceptation of the term,’ to a plaining mill and lumber yard. This is the building and the business to which the premises for the past two years have been, are now, and are proposed in the future to be appropriated. There is now, when the court is asked for a decree, and there was at the time the petition was filed, no building erected on the lands bought of Messrs. Gaylord and Smith as stipulated in the agreement, ‘to be used as a foundry and machine shop;’ the business appropriate to such an establishment was not then and is not now in operation, nor contemplated in the future. On the contrary, a business was and is in ‘ operation ’ distinct from that named with such studied precision by the parties as the consideration for the grant; and whether it employs a greater or less number of operatives or equally with a foundry and machine shop, contributes to the business pros*153perity and enhances real estate values in the town; or whether, as some of the witnesses say, it endangers the burning of the hotel, still owned by the Dietrick estate, it is not important to determine, for the parties to the contract left no grounds upon which a substituted performance of conditions or an alternative construction can rest.

“ It is plain from the most cursory reading of the agreement that the consideration was not only, nor principally, the sum of fifty dollars, but also the erection of a building of the specified dimensions, and the carrying on within it of a specified business. The latter are first named, and are first in importance, although the consideration is entire, and includes the moneys to be paid, as well as the acts to be done. Under all the facts ought a decree for specific performance to be made ?

“ The court is authorized to enforce, but not to make, or even vary, contracts. The power of enforcing is distinct from that of imposing obligation. The latter is the province of the parties. The agreement they make is substantially to be performed, and courts of equity and the Orphans’ Court, in its exercise of the authority given by the fifteenth section of the act of 24th February, 1834, P. D.,'276, §10, under which the present application is made, have no more jurisdiction than courts of law to vary an express agreement between the parties, and will not interfere, unless it can secure substantially what each party contracted-for: Batten on Cont., 298, 36 ; L. L., 169. There are few cases, in which equity insists with more rigor on the maxim, that he who seeks equity must do it, than in those for specific performance of contracts; and relief has been refused to a party who wuisin default in the performance of other engagements, although collateral to that on wdiich relief was sought: 2 Lead. Cas. in Eq., 699. Where the contract, as in the present, ease, is unilateral, and consists solely in a stipulation that the vendor will convey i/j and *when,*the specified conditions, which form the substantial consideration, are performed,without imposing any obligation on the vendee, either to accept a conveyance, or to perform the conditions, the rule is of even more rigid application. Time, in such case, has been held of the essence, when otherwise it would not have been : Westerman *v.*Means, 2 J., 97. The stipulations of this contract are not only for the erection of a foundry and machine shop, but' also for their use as such. The wmrds ‘to be used as a foundry and machine shop ’ import a continuing condition. This condition, under a later clause, must exist, and the business ‘ be in operation’ when the deed is called for. The condition is not discharged and the obligation to convey *154rendered absolute by the mere erection of a building of the stipulated size, and its use for a day or a year in the stipulated way. It is ‘ *to be used ’*for that purpose, and not be converted to another. The clear expression of one use is the exclusion of another and distinct one, for ‘ *expressio unius est exdusio alterius.’*If the parties choose, even arbitrarily, to stipulate fora particular thing'to be done, for which they had the right to stipulate, is not that stipulation to be carried into effect ? Can the party asking specific performance evade specific performance on his part, and base his application on his performance of conditions voluntarily substituted by himself in place of those contained in the agreement? Is mutuality of obligation and of performance essential ? Are any grounds shown for reforming the contract ? Can compliance with its terms be exacted of one party, and excused in another?

“As a deed cannot be demanded before-the time agreed on for its delivery, so, if its execution and delivery are made dependent on the doing of .an act, or the occurrence of an event, until the act or event, the demand for such deed is premature. If a conveyance had been made, either voluntarily or under a decree of the court, after the erection of the building, and, whilst the stipulated business was in operation, could the grantee have been enjoined against converting the premises from a foundry and machine shop into a planing mill and lumber yard? If so, the decree now asked for should be refused. The grounds to sustain such injunction would have been a defence to a bill for specific performance. If, on the other hand, the grantor, after deed made, would have been without remedy, either at law or equity, there may be more reason for his protection in the only way left, by withholding a decree, and suffering the grantor to retain the security afforded by holding on to the legal title until the contract be fully complied with by the party seeking its enforcement: Parmentier *v.*Wheat, 9 Casey, 197. In the case of Quick *v.*Stuyvesant, 2 Paige’s Ch. R., 84, cited by the court, with approval in Bishop *v.*Reed, •3 W. & S., 265, Quick conveyed lands to Stuyvesant for the purpose of opening streets in the city of New York. By a subsequent act of the city government, which they could not control, the parties were prohibited from laying out and opening the contemplated streets. A reconveyance of the land was decreed. If a deed or obligation is sought to be made effectual in an event, which is unexpected to both parties, a court 'of equity denies its authority. The party ■seeking to enforce it is unjust and inequitable in his demand, and this furnishes a valid, objection to the adverse party j

*155“ Our conclusions upon the whole case, reached after some hesitation, are that the decree of specific performance prayed for in the petition must be, and the same is, refused.”

The petitioners appealed and assigned the decree of the Orphans’ Court for error.

*3. B.*Payne, for appellants.

The only stipulation in the contract to entitle the vendee to a deed was that the foundry and machine shop should be erected, and the business in operation ; this fixed the vendee’s right of property, and he was entitled to his deed. Dietrich’s administrator not then having delivered the deed, he was in default; he cannot now take advantage of his own default.

*C. E.*Rice, for appellees.

The interpretation is to be made of the whole contract, not a single clause. The mere erection and completion of the shop was not the consideration which the parties had in mind. The building was to be for carrying on a particular kind of business ; if any other business was carried on the consideration failed, — the condition being not only precedent but continuing. Even if a conveyance had been made it would be upon this continuing condition, and, if that failed, the grantor could enter for breach. If that be so, much more would equity refuse to decree specific execution. Nor could'the grantee carry on an entirely different business, — if so he might' carry on a dangerous or offensive business, one which the vendor would never have agreed to in contracting to sell. To allow this interpretation would make the contract unreasonable and unconscionable.. Such contract equity would not enforce: 2 Parsons on Cont., 437 ; Mortlock *v.*Buller, 10 Ves., 292; 4 Kent’s Com., 126; Hayden *v.*Stoughton, 5 Pick., 528 ; Police Jury *v.*Reeves, 18 Martin Louis R., 21. Even if a deed had been executed, and a subsequent event not within the control of either party rendered it inoperative, a reconveyance would be decreed: Quick *v.*Stuyvesant, 2 Paige’s Ch. R. 84 ; Bishop *v.*Reed, 3 W. & S., 261. The remedy sought is not mutual: 1 Story’s Eq., sect. 716; Westerman *v.*Means, 2 Jones, 97. If the vendee has failed in his contract, he acquired no equity by improvements: Carmalt *v.*Platt, 7 Watts, 321.

Mr. Justice Gordon

delivered the opinion of the court, March 23d, 1874:

The plaintiffs, claiming under JohnF. Derby, on the 27th of November, 1871, presented their petition to the Orphans’ Court of Luzerne County, praying for a decree of specific performance against the administrator and heirs of George *156H. Dietrick, deceased. This petition is founded upon articles of agreement, dated March 1st, 1860, in which Dietrick agrees to convey to Derby a certain lot of ground in Plymouth, Luzerne County, the consideration for which is set out as follows: “ Whereas, John F. Derby, of Pine Grove, Schuylkill County, Pennsylvania, is about erecting a building on lands of Henderson Gaylord and Draper Smith, in Plymouth, Luzerne County, Pennsylvania, of about two hundred feet in length and about thirty feet in width, to be used as a foundry and machine shop, according to the general acceptation of the term ; and whereas, it is necessary to have more land to laydown a railroad track and several switches for the convenience of building and repairing railroad cars, and a connection of the said railroad and switches with the Lackawanna and Bloomsburg Railroad: Now, George II. Dietrick, of Plymouth, Luzerne County, Pennsylvania, agrees for himself, his heirs, executors, and administrators, in consideration of the erection and completion of said building, and the further consideration of the sum of fifty dollars, to be paid to him, the said George II. Dietrick, that he will make and execute unto the said John F. Derby, his heirs or assigns, *a good and sufficient deed*for the following described piece of land, situate in Plymouth aforesaid, *whenever the Said-building as aforesaid shall be erected, and*(the) *business aforesaid shall be in*operation.”

The Court below refused its decree, on the ground that the. agreement on the part of Derby to erect the building and use it for a foundry and machine shop, was a continuing condition or covenant, and, hence, it was broken by the subsequent conversion of such building to other purposes. If the premises thus adopted by the Court be correct, the conclusion follows as an inevitable consequence, for no one can come into court with a broken covenant in his hand, and successfully move that court, in his favor. If, however, the-ease is as the plaintiff contends, that Derby, in good faith, erected the stipulated building, and used it for the purpose intended by the parties to the agreement, and the covenant was not a continuing one, then the complainants should have had the decree they asked for.

The question depends for its solution upon the construction of the contract. The main facts are undisputed. Derby, in 1860, erected the building, and he, his representatives and vendees, including the plaintiffs, used it as a foundry and machine shop from that date until the year 1870, when it was sold to Harvey Bros. & Kern, who removed the machinery, and converted it into a planing mill.

A governing question in this case is as to the time when *157Derby was entitled to demand his deed. Upon this point we can have no difficulty, for thereupon the contract is specific: "Wh*enever the said building as aforesaid, shall be*erected, *and the business mentioned shall be in*operation,” then, upon the payment of fifty dollars, Dietrick was to execute to Derby, his heirs or assigns, *a good and sufficient deed*for the premises. From the testimony no one can doubt that Derfyy did erect the building, and did put the required business into full operation. It is not even pretended that he was derelict in a single particular. Ilaving then complied with his covenant in good faith, was he not entitled to his deed ? Had he not done all he contracted to do? But it is insisted that had a deed then been, made, Dietrick might have inserted the covenant therein as a condition, by which the deed would have been forfeited upon a change or abandonment of the specific business. But to this we answer the parties did not so contract, and no such inference can be fairly drawn from the language of their agreement. Derby’s covenant was to do a particular thing, not to continue the doing thereof through all time.

The condition was a precedent one, and upon its fulfilment he was entitled to *a good and sufficient deed.*But a good and sufficient deed means one that will pass the estate of the grantor free from all conditions or incumbrances. Under such a covenant we could not consent to permit the property to be subjugated by a perpetual condition so onerous as seriously to detract from, if not wholly to destroy its value, unless the terms of the contract clearly required it.

It follows from what has been said, that if Derby in his lifetime, as the testimony clearly indicates, complied with his covenant, by erecting the building required by the articles of agreement, and using it as a foundry and machine shop, it only remains for his vendees to pay to Dietrick’s representatives fifty dollars, with lawful interest, in order to entitle them to a deed.

Order of the court reversed, and *procedendo*awarded.