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ALBERT v. SCHENLEY AUTO SALES (11/24/53)

November 24, 1953

ALBERT
v.
SCHENLEY AUTO SALES, INC., APPELLANT



Appeal, No. 115, March T., 1953, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1950, No. 1011, in case of William J. Albert et ux. v. Schenley Auto Sales, Inc. Judgment affirmed.

COUNSEL

Samuel M. Rosenzweig, for appellant.

Samuel J. Goldstein, for appellees.

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

Author: Bell

[ 375 Pa. Page 513]

OPINION BY MR. JUSTICE BELL

Plaintiffs brought an action of assumpsit to recover damages for alleged breach of a written contract to purchase certain real estate. Defendant filed an answer denying the breach and asserted a counterclaim for damages for failing to give a deed to all the property described in the agreement of sale.

The agreement of sale entered into between the parties on February 9, 1949, contains a description of the

[ 375 Pa. Page 514]

    real estate as follows: "ALL THAT CERTAIN piece or parcel of ground situate in the 32nd Ward of the City of Pittsburgh fronting 50 feet more or less on Saw Mill Run Boulevard, extending back a depth of 146 feet more or less to a line*fn* having erected thereon a one story cement block garage building, and being better known as No. 2015 Saw Mill Run Boulevard, and being better described in owner's Deed of Record recorded in the Recorder's Office of Allegheny County, Pennsylvania." A closing date was set for March 15, 1949, but due to certain defects in the title, the parties entered into a supplemental agreement which extended the closing date to October 15, 1949. The defendant went into possession on April 1, 1949, and assumed all taxes on the property from that date. The plaintiffs cleared the defects in the title and tendered a deed describing the property as extending back a depth of 109.06 feet on one side and 107.41 feet on the other side. The defendant refused to accept the deed and after several months' occupancy vacated the premises. Plaintiffs sold the property at a loss of $3000. and instituted the present suit to recover this loss. The jury returned a verdict in favor of the plaintiffs. Defendant filed a motion for a new trial and for a judgment n.o.v. which will be considered separately. Defendant has appealed, of course, from the judgment entered on the verdict.

The first question that arises is whether the agreement was clear or ambiguous and obscure. Expressing it another way, did the parties intend in and by the agreement (a) to buy and sell a piece of ground fronting 50 feet more or less on Saw Mill Run Boulevard, extending back in depth 146 feet more or less to a line, and if so, what and where was the line., or did they

[ 375 Pa. Page 515]

    intend (b) to buy and sell premises known as 2015 Saw Mill Run Boulevard as it was "better described in owner's Deed of Record recorded in the Recorder's Office of Allegheny County"; or did they intend (c) to buy and sell "premises known as 2015 Saw Mill Run Boulevard" ...


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