Appeal, No. 151, Jan. T., 1951, from decree of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1949, No. 475, in case of Joseph L. Rosenberg v. Samuel A. Cohen, Selma M. Tannenbaum, also known as Selma T. Pastor, Isabel Bedford and Sylvia M. Cohen. Decree affirmed.
Edwin Fischer, with him Samuel Moonblatt, for appellant.
Charles J. Hepburn, Jr., with him Riely, Hepburn, Earle & Wetherill, for appellees.
Before Drew, C.j. Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE MUSMANNO
This is an appeal from the dismissal by the court below of a bill in equity to compel defendants to convey certain premises to the plaintiff and to account for all profits and issues therefrom after September 22, 1945.
It is the contention of the plaintiff-appellant, Joseph L. Rosenberg, that on September 22, 1945, he engaged the defendant Samuel A. Cohen to purchase for him certain premises on Hazel Avenue in Philadelphia for the price of $18,000, and that he delivered to the defendant on September 27, 1945, the sum of $2,000 to be used as a deposit for that purchase. On October 22, 1945, the defendant returned the money, advising that the owner would not accept the plaintiff's offer. The plaintiff maintains that this constituted a deception on the part of the defendant since, on October 9, 1945, the defendant negotiated to purchase the property for his own use and purposes. And that, in order to deprive the plaintiff of his rights, the defendant arranged to have the premises transferred for $18,000 to one Dorothy Chester, a straw woman; and that Dorothy Chester conveyed the property to another straw person Louis Bernstein for the consideration of $20,000; that Cohen then arranged another straw transaction whereby for a consideration of $100 the premises were transferred to one Paul Tannenbaum, and that this was then succeeded by still three or more straw proceedings until the property finally arrived in the hands of Selma T. Pastor, Isabel Bedford and Sylvia M. Cohen, all of whom are acting in behalf of Samuel A. Cohen.
The plaintiff seeks to have these various transactions declared fraudulent to the end that the property may be conveyed to him, upon payment of $18,000 plus title and recording charges.
The defendant admits he is now the beneficial owner of a one-third interest in the property, but maintains
that this interest was acquired in good faith by him in the ordinary course of his business of real estate broker and dealer. He denies that he owed the plaintiff, who is also a real estate broker and dealer, any duty except to submit to the owner of the property his offer of $20,000 with the condition of a purchase money mortgage in the amount of from $12,000 to $15,000. The defendant asserts that the owner refused to sell the property to Rosenberg subject to a mortgage, and that is the reason Cohen returned the $2,000 deposit.
Though the issue was not raised in the court below, plaintiff now contends, on appeal, that the defendant Cohen committed fraud by using the plaintiff's money to purchase the real estate and in concealing from him the fact that the real estate was ...