Barnet Lieberman, H. Mark Solomon, Philadelphia, for appellant.
Frank M. Lissy, Philadelphia, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 237]
Appellant, in this action of assumpsit, seeks to recover the sum of $500, representing the value of an oil burner allegedly converted by defendants. The cause was tried non-jury in the Municipal Court of Philadelphia County before JONES, J., who found for defendants. Plaintiff's motions for a new trial and for judgment n. o. v. were dismissed and judgment entered for defendants upon the finding of the trial court.
[ 169 Pa. Super. Page 238]
By an agreement made April 30, 1947, plaintiff, through his agent, the Real Estate Managers Company, leased certain real estate for a period of one year, commencing June 1, 1947, to Leon Koppelman, one of the defendants. It provided in part: 'The Lessee shall have an option for a period of 6 months from date of the commencing of this Agreement to purchase this property for the price of $20,000. The said option shall expire without notice on December 1, 1947.'
During the term of the lease the plaintiff, through his aforesaid agent, granted the lessee permission to install an oil burner. The permission was contained in a letter dated September 19, 1947, which reads:
'It is agreeable with the owner that you shall be permitted to install an oil burner in the said leased property at 2500 Germantown Avenue at your own cost; provided that at such a time you vacate the premises you will be permitted to remove said oil burner, and further provided that you replace the heater in a good and usable condition for coal burning.
'If, however, you exercise your option to purchase by December 1, 1947, an allowance of $500 will be made and deducted from the $20,000 sale price as consideration for this investment.'
On November 29, 1947, the option was exercised by an agreement of sale entered into between Real Estate Managers Company, agent for plaintiff, and Abraham Koppelman, the other defendant. The purchase price was $19,500: $1,000 in cash was payable at the signing of the agreement; another $1,000 in cash was to be paid on or before January 10, 1948; and $2,500 in cash was payable at settlement on or before March 1, 1948. The seller agreed to take a first mortgage for the balance. It was also provided that: 'Should the purchaser default in performing any ...