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DELVITTO v. SCHIAVO (04/22/52)

April 22, 1952

DELVITTO
v.
SCHIAVO, APPELLANT



Appeal, No. 66, March T., 1952, from judgment of Court of Common Pleas of Westmoreland County, Aug. T., 1945, No. 575, in case of Paul A. Delvitto, Assigned to Milton Redlich v. Tom Schiavo et ux. Judgment affirmed.

COUNSEL

Carroll Caruthers, with him William F. Caruthers, for appellants.

Fred B. Trescher, with him Everett S. C. Sorber and Kunkle & Trescher, for appellee.

Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Chidsey

[ 370 Pa. Page 300]

OPINION BY MR. JUSTICE CHIDSEY

Originally, this action commenced by a suit in equity for specific performance of a contract to convey a hotel together with the contents and a liquor license for the sum of $22,000. The contract arose by virtue of a 90-day option given by the appellants (Tom and Lena Schiavo) to the appellee (Paul A. Delvitto) on September 22, 1945 and accepted by the appellee on October 10, 1945. After tender of the purchase price to the appellants and refusal by them, the equity action was instituted in November, 1945.

Preliminary objections to the action for specific performance were filed by the appellants (defendants) and the case was certified by the court to the law side

[ 370 Pa. Page 301]

    whereupon a statement of claim in assumpsit was filed. Upon the trial of the case a verdict was directed for the defendants and a new trial was refused. On appeal to this Court the action was remanded to the Superior Court which reversed the lower court and awarded a new trial: Delvitto v. Schiavo et ux., 164 Pa. Superior Ct. 338 (1949), 64 A.2d 496.

The second trial resulted in a verdict in favor of the plaintiff in the sum of $4,000. After motions for a new trial and judgment non obstante veredicto were refused and judgment entered on the verdict, defendants took this appeal.

From the evidence, viewed in light of the jury verdict in favor of the plaintiff, the following facts were established: Plaintiff was a justice of the peace and defendants were the owners of the Brunswick Hotel in Irwin, Pennsylvania, together with its furnishings including a bar, and a liquor and beer license. In September, 1945 the defendants contacted the plaintiff and asked him to find a buyer for their property. Shortly thereafter the plaintiff went to the hotel and defendant Lena Schiavo signed the option which provided, in substance, that in consideration of $100 plaintiff was given the right for a period of 90 days to buy the above described real estate, personal property and liquor license for the sum of $22,000. At that time plaintiff gave defendant Lena Schiavo two fifty dollar bills as the consideration. Subsequently, defendant Tom Schiavo returned and signed the agreement. On October 10, 1945 plaintiff, by his attorney, Everett C. Sorber, Esquire, sent written notice to the defendants advising them that he was exercising the option.

Plaintiff also testified that defendants were interested in obtaining $22,000 for the property and that he was to receive for his services all over that amount if he ...


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