And now, to wit, February 1, 1915, the motion for a new trial filed in this case is overruled and a new trial refused. An exception is noted and bill sealed for the defendant.

ECK vs. YEAKEL.

Justice of the Peace-Attachment Execution.

An attachment in execution cannot issue on a judgment before a justice of the peace, until there has been a return of "no goods" to an execution issued on the judgment.

In the Court of Common Pleas of Lehigh County. Milton Eck, plaintiff in error, vs. Joel H. Yeakel, defendant in error, Segilman & Co., garnishees, No. 20 January Term, 1914, Certiorari.

R. W. Iobst, for Plaintiff in Error.

M. C. Henninger, for Defendant in Error.

Groman, P. J., October 26, 1914. Joel H. Yeakel brought a civil suit before a justice of the peace against Milton Eck, and on August 20th, 1913, recovered judgment for $96.30. No further proceedings were had before the justice until September 30th, 1913, when an attachment execution was issued against Seligman & Co., and judgment entered against Seligman & Co. as Garnishees. Further proceedings had before the justice of the peace do not enter into the disposition of this matter and reference thereto is not required.

The Second Section of the Act of April 15th, 1845, P. L. 459, provides:

"Any alderman or justice of the peace before whom any judgment remains unsatisfied, and an execution has returned 'no goods,' may, on the application of the plaintiff, and his compliance with the requisitions of the act, to which this act is a supplement, issue an attachment in the nature of an execution, as therein provided, to levy upon stock, debts, and deposits of money belonging or due to the defendant in satisfaction of said judgment."

In Elizabeth Miller vs. Davilla Snyder, 133 Pa. St., Page 23, (1890), the Supreme Court held that a return to the execution of 'no goods' was a pre-requisite to an attachment execution before a justice.

The record in this proceeding shows that the justice of the peace failed to comply with the terms of the act requiring a return of 'no goods' before issuing an attachment execution. Other matters raised by the exceptions need not be passed upon.

Now, October 26th, 1914, the judgment in the above proceeding, entered by the justice of the peace against Seligman & Co., as Garnishees, is hereby set aside.

MARKLEY vs. GODFREY.

Contracts - Option-Time for Exercising Option-Reasonable Time-Question for Court.

1. An option, being a unilateral undertaking in which the remedies are not mutual, the time fixed is material.

2. 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 which, there being no dispute as to the facts, is for the Court.

Contracts -Performance of Condition Precedent-Written Contract Qualified by Contemporaneous Oral Agreement.

3. No amount of hardship, or impossibility, or illegality will avoid the bar of a condition precedent unperformed.

4. 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.

Equity-Equitable Action at Law-Verdict Determined by Situation at Time of Decree.

5. In an equitable action at law the verdict is determined by the situation at the time of its entry.

6. Plaintiff, on September 23, 1911, bought a lot of ground from defendant and on the day of the conveyance thereof, the parties executed an instrument under seal, in which, in consideration of said purchase and the payment by defendant to plaintiff of $1, the defedant agreed "to repurchase at the option of the said plaintiff, at the expiration of one year from the date hereof, for the sum of $2,500," a part of said lot. On July 12, 1912, plaintiff wrote to defendant a letter saying, "I will therefore give you notice that I will revert or resell this lot as per agreement to you at the stipulated figure, $2,500. as per agreement." Held, (a) That the plaintiff's notice of July 12, 1912, remaining unretracted and unqualified, in defendant's hands on September 23, 1912, on that day declared to him the plaintiff's election to exercicse his option under the agreement, and is so far as its effect depended upon the time fixed therein, bound defendant as an election then made or reiterated. (b) Plaintiff's option by his election to exercise it on September 23, turned into a mutually binding contract whereby defendant repurchased the lot for $2,500 to be paid in a reasonable time after the date mentioned upon conveyance of the lot by plaintiff to defendant.

In the Court of Common Pleas of Berks County. No. 39 September Term, 1913. Verdict for plaintiff for $2,500. Rules by defendant for new trial and for judgment n. o. v.

Oliver M. Wolff and Cyrus G. Derr for Defendant and Rules.

Charles H. Tyson for Plaintiff.

Opinion by Endlich, P. J., February 1, 1915. The defendant, on September 23, 1911, sold to the plaintiff house and lot No. 232 Clymer street, together with the adjoining lot, both being subject to a mortgage given by defendant for $5,000. On the same day, the parties executed an instrument under seal, in which, in consideration of said purchase and the payment by defendant to plaintiff of $1, the defendant agreed "to repurchase, at the option of the said (plaintiff) at the expiration of one year from the date hereof, for the sum of $2.500, the lot of ground adjoining... ...232 Clymer street." On July 12, 1912, plaintiff wrote to defendant (and the latter received) a letter, in which, after referring to the lot and to the agreement as expiring Sept. 23, 1912, plaintiff said:

"I will therefore give you notice that I will revert or resell this lot as per agreement to you at the stipulated figure $2,500 as per agreement.

"I will give it into your hands for convenience sake from this date."

There was no reply by defendant. On September 23, 1912, plaintiff went to see defendant at his place of business, but did not find him. On September 24 and 25 plaintiff was out of town on business. On the evening of the latter day he telephoned to defendant asking when he could meet him, defendant answering that he was at his place of business every day until 6 o'clock. On September 26, plaintiff called there and waited for two hours without seeing defendant, thereupon leaving a note for him that he, plaintiff, would call in the morning. He did so on September 27 and waited four hours, defendant not appearing. On September 28, plaintiff met defendant and tendered him a deed for the lot, which, whilst dated and acknowledged as of September 23, 1912, was not, in

fact, executed until several days thereafter. Defendant, without accepting the deed or assigning any reason for not accepting it, told plaintiff he would let him know in a few days what he was going to do. No word coming from him, and the $5,000 mortgage being cancelled on October 21, 1912, plaintiff on that date wrote to defendant, again offering conveyance of the lot, repeating his desire that defendant buy it and make payment according to the agreement, and requesting to be informed what defendant intended to do in the matter. That letter also remained unnoticed. Plaintiff, after waiting until August 23, 1913, then brought this suit in assumpsit. At the trial the only controverted questions of fact were as to an alleged waiver by plaintiff of his notice of July 12, 1912, and as to an alleged abandonment by both parties of the agreement of September 23, 1911. The cause was accordingly submitted to the jury on that issue. The verdict, negativing it, was for plaintiff for $2,500 and interest from September 28, 1912, conditioned upon plaintiff's conveyance of the lot, free of incumbrances, to defendant.

The position of the defendant at the trial was (inter alia) and now is that a recovery by plaintiff is forbidden because he did not live up to what was incumbent upon him under the agreement on which he relies. The substance of the argument, briefly stated, is that the agreement gave plaintiff an option to call upon defendant to take back and pay $2,500 for the lot, in the exercise of which option so as to bind defendant plaintiff was obliged strictly to observe all the terms indicated: see McMillan vs. Phila. Co., 159 Pa. 142; Swank vs. Fretts, 209 id. 625; Barnes vs. Rea (No. 2), 219 id. 287; Barton vs. Thaw, 246 id. 348; Potts vs. Whitehead, 23 N. J. Eq. 512, 514; Eggleston vs. Wagner, (Mich.) 10 N. W. 37, 42,-that the plaintiff's option was to be exercised "at the expiration of one year" from September 23, 1911, and involved a tender at that time to defendant of a conveyance of the lot freed from the lien of the $5,000 mortgage,—that the notice given by plaintiff to defendant on July 12, 1912, was not a compliance with the terms of the option as to time, besides being of uncertain meaning and in its last clause introducing something not contemplated by the agreement, viz., an immediate taking over of the lot by

defendant, with a resulting liability for interest on the price; see Fasholt vs. Reed, 16 S. & R. 266, 268; Hershey's Est., 213 Pa. 601,-and that plaintiff's nonreadiness to pass an unincumbered title to defendant on September 23, 1912, and his failure to tender any conveyance until September 28, 1912, effectually disposed of the option he had under the agreement.

The label which the parties themselves have put upon their contract is not conclusive upon the court: Brunswick, etc., Co. vs. Hoover, 95 Pa. 508, 513, and their punctuation is not of much weight: White vs. Smith, 33 id. 186, 188; Abbott's Est., 198 id. 493, 496. But without relying upon either of these matters as aids to the understanding of the agreement of September 23, 1911, it seems clear enough that it was intended and effective to give plaintiff a right, answering every definition of an option, (irrevocable by defendant because supported by a consideration implied by the seals as well as expressed) of calling upon defendant to buy back the lot adjoining 232 Clymer street at the price of $2,500, and in the event of plaintiff's exercising that right or option in accordance with the terms of the agreement, to require defendant to buy the lot back at that price,-that right to be exercised and that duty to be performed "at the expiration of one year from" September 23, 1911. In every contract under which the remedies are not mutual the time fixed is to be regarded as material: Westerman vs. Means, 12 Pa. 97, and so it is in an option: Swank vs. Fretts, 209 Pa. 625, which is an unilateral undertaking: ibid.; Barton vs. Thaw, 246 id. 348. It is not necessary to review the numerous and conflicting decisions dealing with the phrase "at the expiration of," some holding that it limits a time ending with the period fixed, so that the thing contemplated cannot be done or required thereafter, others, that it indicates a period to elapse before a liability is to arise or a right to be exercised, and still others, that it demands action on the very day when the period expires, neither before nor after. Giving it for present purposes the meaning which is the most favorable possible one to defendant it imports that plaintiff's election to exercise his right under the agreement must be made, and defendant's resulting liability could only arise, on September 23, 1912, and that a default on plain