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ALLARDICE v. MCCAIN (11/24/53)

November 24, 1953

ALLARDICE
v.
MCCAIN, APPELLANT



Appeal, No. 210, March T., 1953, from decree of Court of Common Pleas of Allegheny County, Jan. T., 1951, in Equity, No. 1683, in case of William Duncan Allardice, also known as W. D. Allardice et ux., v. Emma D. McCain et vir. Decree affirmed; reargument refused January 13, 1954.

COUNSEL

John B. Nicklas, Jr., with him McCrady & Nicklas and James P. Gill, for appellants.

Norman R. Schade, with him Campbell, Houck & Thomas, for appellees.

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

Author: Chidsey

[ 375 Pa. Page 529]

OPINION BY MR. JUSTICE CHIDSEY

[ 375 Pa. Page 530]

This is an action in equity to compel the specific performance of a written agreement to sell real estate. The defendant, Emma McCain, was the owner in fee simple of certain premises, known and numbered as 3916 Franklin Road, Pittsburgh, Pennsylvania. These premises were occupied by the plaintiffs, William Allardice and Edna Allardice, his wife, under a written lease from Emma McCain and William McCain, her husband, dated August 1, 1942.The defendants lived in adjoining property, also owned by Mrs. McCain.

The lease provided that the plaintiffs were to have possession of the leased premises for a period of nine months, commencing August 1, 1942, and that the defendants were to receive a monthly rental of $70. The lease was renewed by the parties on March 1, 1943 for a term of one year from May 1, 1943 to April 30, 1944. During the continuance of the lease the plaintiffs and defendants on December 31, 1943 entered into a contract for the sale of the leased premises.

The contract provided that the plaintiffs should pay to the defendants the sum of $500 upon the signing of the agreement, the sum of $3,925 upon the delivery of a deed on or before 30 days from the date of this agreement and the further sum of $4,500 to be secured by a purchase money mortgage. The defendants, in turn, obligated themselves to give the plaintiffs a general warranty deed. Time was not made of the essence.

Despite the fact that there had been prior discussion between the parties concerning the erection of a garage on the premises by the plaintiffs and an option to repurchase by the defendants in the event plaintiffs decided to sell, the agreement of sale was executed without the inclusion of any provision relative thereto. A short period after the execution of the agreement, Mrs. McCain requested that the agreement be modified

[ 375 Pa. Page 531]

    to provide that the deed to be delivered should include provisions concerning the garage ...


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