Appeal, No. 15, Oct. T., 1951, from decree of Orphan's Court of Delaware County, 1949, No. 30, in Estate of Morton R. Craven, deceased. Decree affirmed.
W. Horace Hepburn, III, with him W. Horace Hepburn, Jr., for appellant.
Charles G. Gartling, with him Joseph R. Young, Jr., Sidney A. Johnson, Jr., and Butler, Beatty, Greer and Johnson, for appellee.
Before Rhodes, P.j., Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
Opinion BY RHODES, P.J., July 19, 1951:
At the audit of the account of the administrator c.t.a. of the estate of Morton R. Craven, deceased, Thomas E. James, the appellee, presented a claim for damages occasioned by reason of decedent's failure to perform a written contract for the sale of land to appellee. The claim was allowed by the Orphan's Court of Delaware County in the amount of $2,340 with interest. Five hundred dollars represented return of the deposit made upon signing the agreement, and the balance of $1,840 constituted damages for loss of bargain. Appellant, who is the residuary legatee under decedent's will as well as a claimant, excepted to such adjudication, and upon dismissal of his exceptions he appealed from the final decree.
Decedent's failure to comply with the provisions of his contract with appellee resulted from his inability to do so by reason of being compelled to specifically perform an earlier contract under which he agreed to sell the same premises to another party. The question before us is whether decedent's conduct, under the facts, constituted bad faith.
By written contract dated October 29, 1945, Morton R. Craven, the decedent, through a straw man, contracted to convey certain real property consisting of twenty-four lots in Delaware County to the Marshall Construction Company, Inc., for the sum of $6,575.20. On January 25, 1946, the Marshall Construction Company, Inc., notified the seller that is exercised one of the alternate options under the contract.
On March 30, 1946, Morton R. Craven contractd in writing to seel a portion of the premises to the St. John's Evangelical Lutheran Church of Folcroft for the sum of $3,500. On the same day he contracted in writing to sell teh balance of the tract to the appellee, Thomas E. James, for the sum of $5,700, of which $500 was paid upon signing the agreement. This latter agreement provided: "In the event that the party of the first part [Craven] is unable to carry out the terms of this agreement by reason of any flaw or defect in the title, then the said hand money paid, is to be returned by the said party of the first part to the party of the second part [James] and this agreement is to become null and void."
On May 14, 1946, the Marshall Construction Company, Inc., had issued a summons in equity against Craven and his straw man, and on May 24, 1946, it filed its bill praying for specific performance. The suit was indexed in the judgment index in the office of the Prothonotary of Delaware County. St. John's Evangelical Lutheran Church of Folcroth was later joined as an additional defendant. On June 24, 1946, Craven and James agreed in a writing endorsed on the back of their agreement to extend the time for its performance for thirty days or until a settlement certificate was issued by the Delaware County Trust Company. On July 31, 1946, the same parties again agreed in a writing endorsed on the back of their agreement to extend the time for its performance for sixty days or until the above suit in equity brought by the Marshall Constructin Company, Inc., was settled. The court below in its opinion said: "The subsequent act of extending time for performance of the agreement does not amount ot acquiescence by claimant in decedent's 'double dealing.' The extension merely provided decedent with a further opportunity to perform, if possible."
A decree requiring specific performance of the contract between Craven and the Marshall Construction Company, Inc., was filed in the equity action in the Court of Common Pleas of Delaware County on April 25, 1947. Upon appeal the Supreme Court affirmed the decree. Marshall Construction Company, Inc. v. Forsyth, 359 Pa. 8, 57 A.2d 902.
Subsequently, the appellee, Thomas E. James, through a business associate, purchased from the Marshall Construction Company, Inc., for the sum of $7,540 the same premises which Craven had agreed to sell to him for $5,700. The difference of $1,840 represents the damages for loss of bargain as found by the court below.
Morton R. Craven died on February 10, 1948. The administrator c.t.a. of his estate conceded that he estate is indebted to appellee in the sum of $500, the deposit money paid under the contract of March 30, 1946, ...