Appeal, No. 6, Jan. T., 1951, from judgment of Court of Common Pleas of Carbon County, June T., 1949, No. 19, in case of David R. Diehl et ux. v. Kenneth W. Straub et ux. Judgment affirmed; reargument refused April 10, 1951.
Michael von Moschzisker, with him Philip and Philip and Martin H. Philip, for appellants.
Albert A. Heimbach, for appellees.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE JONES
This appeal by the defendants is from a judgment entered on a jury's verdict for damages in an amount equivalent to the unpaid balance of the purchase price for the sale of the plaintiffs' business to the defendants. The indebtedness, according to the oral agreement pleaded by the plaintiffs, was to be evidenced by a bond, payable in annual installments, which was never delivered by the defendants. Their apparent inability to understand the reason for the judgment against them is, perhaps, due in part to the confusion created by the vrying and seemingly inconsistent
causes pleaded by the plaintiffs in support of the action.
The following facts appear by the evidence. On October 1, 1942, the plaintiffs and defendants entered into an oral agreement for the sale of the husband-plaintiff's feed business, including the building, stock, fixtures and equipment, to the defendants for the price of $21,169.58, which was to be paid in annual minimum installments of $500 (to be increased when business improved) together with interest at 5% payable monthly on the unpaid balance of the purchase price. If any installment of principal was not paid within two years after the due date or if any interest payment was overdue more than 90 days, then the whole balance of the unpaid principal was to become immediately due and payable at the option of the plaintiffs. It was further agreed that the defendants would, forthwith, execute and deliver to the plaintiffs a bond for the unpaid balance of the purchase price and a mortgage to secure the payment thereof. Thereupon, the defendants took over the business. In August 1944 the defendants gave the plaintiffs a mortgage to secure the payment of $21,000 ($169.58 being then paid in cash to round off the figure), but no bond was given and, despite repeated demands by the plaintiffs, none ever has been given. The mortgage indenture provided that the $21,000 was to be "payable in annual installments of Five Hundred ($500.00) Dollars the first thereof being due and payable on the 31st day of December, 1944," with the same acceleration option, for default by the mortgagors, as contained in the alleged oral agreement. The defendants made three annual payments of $500, each, in 1944, 1945 and 1946; and all interest payments had, admittedly, been made. The unpaid balance of the purchase price was, therefore, $19,500 to which the jury's verdict for damages, whereon judgment was entered, corresponded.
The complaint alleged defaults by the defendants in the payments of annual installments on account of the balance of the purchase price on October 1, 1943 (sic), December 31, 1947, and December 31, 1948, and, also, set up the defendants' failure to give a bond in accordance with the oral agreement. The plaintiffs thus sought recovery on two grounds, viz., (1) that the due date of the whole of the unpaid balance was accelerated by reason of the alleged defaults and (2) that the defendants were liable in damages for their breach of the oral agreement in failing to give the plaintiffs the required bond. The matter of the alleged defaults in the annual payments dropped out of the case which was submitted to the jury on the basis of the defendants' alleged failure to give the plaintiffs a bond as called for by the oral agreement pleaded.
It is, therefore, unnecessary to consider the appellants' contention that proof of the default in the payment of a principal installment on October 1, 1943, as alleged by the plaintiffs, which was prior to the defendants' delivery of the mortgage to secure payment of the debt, was violative of the parol evidence rule. Nor do we need consider the alleged defaults in the payments due on December 31, 1947, and December 31, 1948. The respective due dates for those specified installments were within two years of the plaintiffs' institution of suit on April 25, 1949. Consequently, the whole of the unpaid balance did not become due by acceleration. As submitted to the jury, the plaintiffs' claim was not on the ...