Appeal, No. 137, Jan. T., 1953, from order and judgment of Court of Common Pleas of Montgomery County, Sept. T., 1951, No. 148, in case of Robert D. Woldow et ux. v. Henry F. Dever. Order and judgment affirmed; reargument refused July 16, 1953.
Roland J. Christy, with him Christy, Harry & Jones, for appellants.
William R. Reynolds, with him Thomas A. Foulke, MacCoy, Evans & Lewis, and Foulke, Knight & Porter, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an appeal from the order of the court below dismissing plaintiffs' motions for a new trial and judgment non obstante veredicto, and entering judgment on the verdict for the defendant in an action by plaintiffs for return of deposit money paid on account of the purchase of certain real estate in Lower Merion Township, Pennsylvania.
In January, 1951, defendant listed the premises involved, 544 Howe Road, Merion Park, with F. E. Caballero, a real estate broker, to be sold at a price
of $47,500. Prior to this time defendant had widened the driveway at the side of the house so that it encroached upon the neighboring vacant lot five and one-half to six feet for a distance of 50 to 60 feet, and built a retaining wall at the edge of the encroachment. This was done to facilitate the use of the garage which was located on the side of the house at that portion of the driveway. The widening of the driveway was without the permission of the owner of the adjoining premises, and defendant testified that it was his intention to remove it if the owner of the vacant lot objected. There was no such objection by the neighboring owner.
On January 28, 1951, plaintiffs, in company with Louis Greenblatt, Esq., their attorney, visited the premises upon the invitation of Caballero. At the time they arrived Caballero was there but occupied with another prospective purchaser and did not accompany plaintiffs in their inspection of the property. On the following day, January 29th, plaintiffs and Greenblatt appeared at Caballero's office, and after some conversation plaintiffs signed the agreement of sale for the premises and delivered to Caballero a check for $5,000 as a down payment on the purchase price. The foregoing facts are undisputed. The only material conflict in the testimony concerns the conversation between plaintiffs and their attorney and Caballero which immediately preceded the signing of the agreement of sale. Greenblatt and the husband-plaintiff testified that Caballero stated that the broadened portion of the driveway and the retaining wall were included within the boundaries of the property as described in the agreement of sale. The wife-plaintiff testified that Caballero said that the property was "as it was represented". Caballero testified that there was no reference at all to the broadened portion of the driveway during this conversation.
Subsequently plaintiffs obtained a survey of the premises and learned that the broadened portion of the driveway was not within the boundaries of the property as described by metes and bounds in the agreement of sale. The Commonwealth Title Company noted two objections on their certificate and refused to insure title to the broadened portion of the driveway or the right to use such portion. Plaintiffs thereupon demanded return of the down money, which was refused by defendant. Prior to the time fixed for settlement, defendant removed the encroachment and the title company then removed the objections on its certificate of title. At the time fixed for settlement, defendant offered to plaintiffs a deed in accordance with the description of the property as contained in the ...