Opinion
April 29, 1958.
June 3, 1958.
Contracts — Written agreement for sale of real estate — Extension of time for settlement — Seller's inability to deliver possession — Purchaser's right to recover down payment.
In this action of assumpsit to recover a down payment under a written agreement to purchase real estate in which it appeared that the sellers were required to deliver possession on or before January 15, 1955; that thereafter the parties by written endorsement extended the agreement "to expire not later than February 1, 1955; that the parties to the agreement met on January 26, 1955 to complete settlement but the sellers could not deliver possession and settlement was postponed to January 31, at which time the parties again met for settlement but the sellers were unable to deliver possession, and on February 1st, counsel for the sellers notified counsel for the purchaser that the settlement would take place at 9 p.m. on that day but the sellers did not notify the purchaser that they could comply with the agreement as to possession prior to midnight on that day; and it further appeared that counsel for the purchaser testified that on January 26th, it was agreed that the settlement would be continued to January 31st with the understanding that if no settlement was made then the agreement would be at an end, which testimony was contradicted; and the trial judge instructed the jury that if the sellers could not give possession at 9 p.m. on February 1st, 1955, the verdict should be for the purchaser, and the jury found a verdict in favor of the purchaser, it was Held that (1) the testimony of counsel for the purchaser was properly admitted and (2) the trial judge did not err in charging the jury.
Argued April 29, 1958. Before JONES, C. J., MUSMANNO, JONES and COHEN, JJ.
Appeals, Nos. 172 and 173, Jan. T., 1958, from judgment of Court of Common Pleas of Montgomery County, Nov. T., 1954, No. 595, in case of Donnelly Suess, Inc. et al. v. Bettina Lilley, executrix of estate of William Lilley, Jr. et al. Judgment affirmed.
Same case in court below: 12 Pa. D. C.2d 383.
Assumpsit. Before KNIGHT, P. J.
Verdict entered for plaintiff in amount of $6,923.33; defendants' motions for new trial and judgment n.o.v. overruled, and judgment entered on the verdict. Defendant appealed.
J. B. H. Carter, with him Thomson F. Edwards, Federico F. Mauck, Pepper, Bodine, Frick, Scheetz and Hamilton, and Wright, Mauck Hawes and Spencer, for appellant.
Gilbert P. High, with him High, Swartz, Childs and Roberts, and Moore, Panfil James, for appellees.
Judgment affirmed on the opinion of President Judge KNIGHT reported at 12 Pa. D. C.2d 383.