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MILSTEIN v. SHORE ET AL. (03/22/50)

March 22, 1950

MILSTEIN
v.
SHORE ET AL.



COUNSEL

Harry A. Rutenberg, Philadelphia, for appellant.

Henry Drizin, Philadelphia, for appellees.

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

Author: Hirt

[ 166 Pa. Super. Page 495]

HIRT, Judge.

This action was brought by plaintiff to recover back a hand payment made by her on a contemplated purchase of real estate. By agreement Henry Drizin was eliminated as a defendant in the action. The jury, on a charge of the court as to which there is no complaint, found in favor of the plaintiff for the amount of the deposit with interest, against the remaining defendants, the owners of the land. There is error in the order of the lower court awarding defendants a new trial. The order will be reversed.

Plaintiff inspected the property at 1211 Fanshawe Street in Philadelphia, on November 18, 1947, in response to an advertisement of the defendant owners offering it for sale. She was interested in buying the property and, on the evening of the same day, went with the defendants to the home of Henry Drizin, their lawyer, for the purpose of entering into a written agreement, upon acceptable terms. No agreement was consummated for two reasons: Defendant's lawyer did not have the facilities for preparing a written contract at his home, and Harry A. Rutenberg, plaintiff's counsel, who was to approve the agreement prior to her execution of it, could not be located. Nevertheless defendants asked for a deposit and in response to their request plaintiff delivered a check, in the sum of $500, to their attorney and took this receipt from him: 'Received of Mrs. Rose Milstein, check dated Nov. 18, 1947, on City National Bank in amount of Five Hundred Dollars ($500.00), as deposit on purchase of premises 1211 Fanshawe Street, Philadelphia, including the furniture therein, except the Refrigerator. [Signed] Henry Drizin.' The parties then separated with the understanding that they would meet with their counsel the following day, to prepare the agreement. By the next morning plaintiff had changed her mind because she felt she could not afford the purchase, and she then notified Mr. Drizin that she was

[ 166 Pa. Super. Page 496]

    not going to buy the property. Her request for a return of her check was refused. Defendants cashed it as soon as the bank opened and before the bank had notice of plaintiff's order stopping payment.

Plaintiff testified in effect that she delivered the check to defendants' lawyer with the understanding that it was to be held by him 'in escrow' to be delivered to the defendants as a hand payment on the purchase price of the property but only after an agreement in writing on acceptable terms had been entered into by the parties. The testimony of plaintiff's husband and of their daughter, both of whom were present when the check was delivered, is to the same effect.

The admissions of the defendants and of their attorney in their testimony at the trial established the validity of plaintiff's contention. Defendant Pauline Shore testified that a price of $15,000 had been agreed upon, and that after the evening meeting of November 18, 1947, all that remained to be done was to draw up the agreement of sale. But on cross-examination by Mr. Rutenberg, representing plaintiff at the trial, in relation to the deposit, when asked 'was that conditioned upon an agreement that would be satisfactory to their lawyer': she replied: 'Yes. They wanted you to see [the writing] after we drew up the papers * * *' The defendant Nathan Shore admitted that the purpose of the futile effort to reach appellant's counsel at the time of the evening meeting of the parties in Mr. Drizin's home 'was in order to work out the agreement.' The following testimony of Henry Drizin, on cross-examination by plaintiff's counsel, is even more definitely significant:

'Q. You were to prepare a formal agreement? A. That's right.

'Q. The formal agreement was to be submitted to me for approval? ...


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