Opinion
October 1, 1930.
November 20, 1930.
Contracts — Agreement of sale — Deposit — Failure to comply with agreement — Evidence — Sufficiency.
In an action of assumpsit to recover a deposit made under the terms of an agreement for the purchase and sale of a cigar stand, there was evidence that the defendant was the owner of the stand but that she did not own the building in which it was located. The defendant was to obtain from the landlord and deliver to the plaintiff, a one year lease for the part of the building occupied by the stand and she agreed that if she failed to obtain and deliver such a lease, she would return to the plaintiff the deposit which he had made on account of the purchase price. The plaintiff's evidence disclosed that the defendant offered him two different leases but that neither one was an unconditional lease for the term of one year.
Held: (1) That there was sufficient evidence to support the finding of fact that the defendant did not furnish and offer to deliver to the plaintiff a lease which he was bound to accept, and (2) that the judgment for the plaintiff will be affirmed.
Appeal No. 242, October T., 1930, by defendant from judgment of M.C., Philadelphia County, May T., 1929, No. 922, in the case of Harry A. Wenzel v. Pauline Levis.
Before TREXLER, P.J., LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and WHITMORE, JJ. Affirmed.
Assumpsit to recover a deposit. Before GLASS, J., without a jury.
The facts are stated in the opinion of the Superior Court.
Finding for the plaintiff in the sum of $418.64 and judgment entered thereon. Defendant appealed.
Error assigned, among others, was the refusal of the defendant's motion for judgment non obstante veredicto.
Leon E. Sperling, and with him Wolf, Block, Schorr and Solis-Cohen, for appellant. Howard E. Heckler, and with him Harry M. Miller, for appellee.
Argued October 1, 1930.
This is a suit in assumpsit to recover a deposit of $400 paid by plaintiff to defendant, under the terms of a written agreement for the purchase and sale of a cigar stand in the Denckla Building in the City of Philadelphia. Defendant did not own the building in which the cigar stand was located. Under the terms of the agreement she was obliged to furnish and deliver to plaintiff a lease from the landlord for the part of the premises in which the stand was located, for the period of one year, at the rental of $600 a year, and she agreed that if she failed to obtain and deliver such a lease she would return to plaintiff the deposit paid on account of the purchase price. On the date fixed in the agreement for settlement the parties met and plaintiff tendered to defendant the balance of the purchase price, and demanded the lease provided for in the agreement. Defendant offered to plaintiff two leases, one for a term of ten months and another for a term of two months. Plaintiff refused to accept these leases on the ground that they did not comply with the provision of the contract in that "there was no direct lease furnished — that is, made out to me for one year," and demanded the return of his deposit. The crucial question of fact raised by the evidence produced at the trial was whether these leases were such as plaintiff was bound to accept. The effect of the general finding of the court below for plaintiff is that they were not.
On this appeal from the refusal of the court below to enter judgment for defendant notwithstanding the finding for plaintiff, the single question presented by appellant for determination is whether the evidence supports a finding of fact that defendant did not furnish and offer to deliver to plaintiff a lease which the latter was bound to accept. The leases which plaintiff refused to accept were not produced at the trial and, therefore, the trial judge had no opportunity to inspect them. Nor did defendant account for their nonproduction. But from our study of the evidence touching the question what they contained we are of one mind that it supports a finding that defendant failed to offer plaintiff an unconditional lease for the term of one year as she was required to do by her contract. Further discussion is unnecessary.
The judgment is affirmed.