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KRAFT v. MICHAEL ET AL. (01/12/50)

January 12, 1950

KRAFT
v.
MICHAEL ET AL.



COUNSEL

John J. Speese, Morris Smith, Philadelphia, for appellants.

R. Paul Lessy, Chester, for appellee.

Before Rhodes, P. J., and Dithrich, Ross, Arnold and Fine, JJ.

Author: Dithrich

[ 166 Pa. Super. Page 58]

DITHRICH, Judge.

This appeal is from the discharge of a rule to show cause why a judgment by confession should not be opened. The judgment was entered on a note given by appellants in part payment for premises which they had agreed to purchase from appellee and his wife. The agreement, entered into by Kinder & Furman, real estate agents for appellee, and the appellants, husband and wife, provided that the latter would purchase appellee's residence at 320 North Oak Avenue, Clifton Heights, Delaware County, Pennsylvania, for the total consideration of $16,000.

The terms of the settlement were as follows: $50 in cash upon the signing of the agreement, $1,550 within five days to be secured by judgment note payable one day after date, and the balance in cash on or before August 27, 1948. The agreement was dated May 28, 1948. Prior to the time stipulated for settlement appellants requested and secured an extension of time to October 1, 1948, but they subsequently defaulted in their agreement.

[ 166 Pa. Super. Page 59]

Paragraph 10 of the agreement provided: 'Should the Buyer violate or fail to fulfil and perform any of the terms or conditions of this agreement then and in that case all sums paid by the Buyer on account of the purchase price or consideration herein may be retained by the Seller, either on account of the purchase price, or as liquidated damages for such breach, as the Seller shall elect, and in the latter event the Seller shall be released from all liability or obligation and this agreement shall become null and void.' The agreement further provided that the agents' commission of $500 should be earned and payable only on completion of settlement and payment of the full purchase price.

After appellants had breached their agreement they obtained a rule to show cause why the judgment should not be opened. The petition to open stated, in part, that (1) appellee is a member of the Delaware County Bar and that the husband appellant is a chief petty officer in the United States Navy, and at no time were he and his wife represented by counsel; (2) the admitted breach was a result of their inability to sell and convey their residence; and (3) that appellee had later sold his property for a sum in excess of the sum for which appellants had agreed to purchase it.

A complete answer to the first phase of appellants' petition is found in the opinion of Judge Sweney discharging the rule to open judgment. He said: 'Plaintiff is a member of the Bar of this County and is also the District Attorney. Defendants would have us infer that this is of oppressive significance, especially in view of the fact that defendants had no attorney. There is no testimony before us that the defendants dealt with the plaintiff. The realtors procured the defendants to purchase this property and the inference is that negotiations were conducted between the parties through the agency

[ 166 Pa. Super. Page 60]

    of the realtors. We find no evidence which indicates that defendants were persuaded or prevented from securing their own attorney. The plaintiff stands before us ...


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