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BERSHAD v. CHESTER NEST NO. 1228 (03/20/50)

March 20, 1950

BERSHAD, APPELLANT,
v.
CHESTER NEST NO. 1228, ORDER OF OWLS OF CHESTER, PENNSYLVANIA



Appeal, No. 27, Jan. T., 1950, from decree of court of Common Pleas of Delaware County, Dec. T., 1946, in Equity, No. 1044, in case of Robert E. Bershad v. Chester Nest No. 1228, Order of Owls of Chester, Pennsylvania. Decree affirmed.

COUNSEL

Clarence G. Smedley, for appellant.

Vincent P. Desmond, for appellee.

Before Maxey, C.j., Drew, Linn, Stern, Stearne and Jones, JJ.

Author: Drew

[ 364 Pa. Page 394]

OPINION BY Mr. Justice DREW

Robert E. Bershad, plaintiff, seeks by this bill in equity to compel defendant, Chester Nest of Owls No. 1228, to convey to him certain real estate located in the City of Chester. A decree pro confesso was entered on the original bill but was later stricken upon petition by defendant. Plaintiff then filed an amended bill which the learned court below dismissed upon a preliminary objection by defendant that as pleaded there was no contract to sustain the cause of action and for this reason defendant had a full defense which did not require evidence to sustain. No further amendments being made, a final decree was entered from which plaintiff now appeals.

[ 364 Pa. Page 395]

Defendant, a Pennsylvania nonprofit corporation, desiring to sell the property here in question, appointed a committee at a duly constituted meeting to solicit offers and conduct preliminary negotiations. Plaintiff submitted to one D. Harvey Sykes, chairman of the committee, an offer of $18,000, $10,000 of which was to be represented by a purchase money mortgage. Sykes in turn presented that offer and one other to the members of defendant corporation at a meeting held December 3, 1946. Plaintiff avers in his amended bill that his offer was accepted by defendant at that meeting and quotes the following extract from defendant's minutes to support that position: "Gus Patrick moved second by Harry Bress that we accept the bid of $18,000.00.

"Sykes (Amendment) That we hold this offer for one week and if alternate offer of 19,000.00 is not received we accept 18,000.00 offer.

"Harry Bress moved second by Gus Patrick that if deal is accepted the Trustees be authorized and they are hereby authorized to sign any and all papers for sale of building at 9th & Sproul St."

The learned court below in dismissing the bill, held that the minutes show the vote to accept the offer was qualified and conditional requiring further action by the members; there having been no unqualified acceptance, no contract was created. Plaintiff argues, however. that the acceptance was absolute subject only to the passage of one week and that no further action by the members was necessary.

In the view we take of this case, it is unnecessary to decide whether there was an unconditional acceptance. Even if the action of the members be treated as an acceptance, there is nothing in the bill or in fact in the whole record, to show that the acceptance was transmitted to plaintiff by an authorized agent of defendant. An acceptance must ...


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