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FLEMING v. STRAYER (05/21/51)

May 21, 1951

FLEMING, APPELLANT,
v.
STRAYER



Appeal, No. 205, Jan. T., 1950, from decree of Court of Common Pleas of Cumberland County, Jan. T., 1949, No. 4, in case of Lester Fleming et al., v. Clyde R. Strayer and Rife, Inc. Decree affirmed.

COUNSEL

Lester L. Fleming, with him John D. Faller, Jr., for appellants.

Donald Beard Waltman, with him George M. Houck and Edwin M. Buchen, for appellees.

Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Chidsey

[ 367 Pa. Page 285]

OPINION BY MR. JUSTICE CHIDSEY

The appellants, Lester Fleming and Hattie Fleming, his mother, were plaintiffs in a bill in equity filed against appellee, Clyde R. Strayer, seeking specific performance of alleged agreements for the sale of real estate. Preliminary objections thereto by the defendant Strayer were sustained. Plaintiffs filed an amended bill in which Rife, Inc. was joined as a defendant on the ground that the latter was the grantee in a deed from Strayer for real estate which included the two pieces of land in controversy. Preliminary objections were then filed by both defendants to the amended bill and sustained. This appeal followed.

The bill on its face discloses that appellant, Lester Fleming, claims under an alleged contract with the appellee, Strayer, for the sale of a tract of land and that the appellant, Hattie Fleming, claims under an alleged contract with Strayer made at a different time

[ 367 Pa. Page 286]

    and for a different tract of land. It is not alleged that either appellant had any interest in the alleged purchase made by the other. The causes of action are clearly separate and independent claims of each appellant against the appellee Strayer, and not a joint claim conferring a joint right of action. Such joinder of parties plaintiff is not permissible. See Equity Rule 36; Ryan v. Reddington, 240 Pa. 350, 87 A. 285; Price v. Hurley, 201 Pa. 606, 51 A. 339. At the oral argument we permitted an amendment to the bill discontinuing as to the claim of Hattie Fleming.

The bill alleges that appellee, Strayer, orally agreed to sell an acre of land to appellant, Lester Fleming, on January 23, 1945, and in order to meet the requirements of the Statute of Frauds (Act of March 21, 1772, 1 Sm. L. 389, Sec. 1, 33 PS § 1), relies upon three separate writings, the first of which is a receipt dated May 28, 1945, attached as Exhibit "A" to the bill, which, without any vendee or recipient named, reads as follows: "May 28, 1945 Received $150.00 for 1 acre of land at road corner beginning at corner of road and extending 200 ft. in front along the Gettysburg-Harrisburg Road and back far enough to make one acre along the Sydnesburg Road. This payment is final and in full for the acre. Price of house to be approximately $4000.00 C. R. Strayer"; a receipt given by Strayer to Hattie Fleming, dated June 23, 1945, attached as Exhibit "C" to the bill, covering a different piece of property, which reads as follows: "6/23/45 Received of Hattie Fleming $500.00 for two lots, one acre each, or two acres next to Lester Fleming's lot along Gettysburg Highway towards Harrisburg, 400 ft. along road, price $700 for two acres and houses to cost $5000 or more. C. R. Strayer", and the following letter, attached as Exhibit "B" to the bill, apparently written by appellant Lester Fleming to Strayer, dated June 3, 1946, which reads as follows: "Dear Clyde: This will confirm our

[ 367 Pa. Page 287]

    telephone conversation on Sunday, June 3, 1946, regarding the payment of the balance due on the land purchased from you. There is accordingly enclosed a check of $200.00 in payment of the balance due on the two acres of land purchased which adjoin on the side towards Harrisburg the acre I purchased from you sometime ago. These two acres cost $350.00 each or a total of $700.00 of which $500.00 has been paid. It is requested that the deed for these two acres as well as for the other acre purchased by me be prepared in the name of Lester L. Fleming. In order that this ...


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