Appeal, No. 18, March T., 1953, from decree of Court of Common Pleas of Westmoreland County, in Equity, No. 2219, in case of S. Stephen Berger v. Harrison J. Weightman. Decree affirmed; reargument refused February 10, 1954.
Samuel J. Goldstein, with him Wm. M. Kahanowitz, for appellant.
Fred B. Trescher, with him Kunkle & Trescher, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
The opinion of the Court en banc (four judges sitting with one judge dissenting) by Judge George H. McWherter, so clearly states the facts and so correctly the law that we shall quote extensively therefrom:
"This action was instituted to compel specific performance of an agreement to sell and transfer to the
plaintiff a ninety-nine year lease of a business block in the City of Greensburg. The agreement is in writing and dated March 4, 1947,*fn* and was signed by both plaintiff and defendant....
"On November 11, 1948, plaintiff filed a stipulation or record to the effect 'that he is willing to forego the alleged encumbrance against the real estate,... and agrees to accept an assignment from the defendant in accordance with the terms of the agreement, dated March 4, 1947, and pay the stipulated consideration for such assignment without deduction or abatement.'...
"1. On July 1, 1921, James Armstrong, Jr. and Jennie Armstrong, his wife, being the owners of the herein described real estate did by indenture of lease, recorded January 5, 1921, in Deed Book 709, page 536, demise, lease and let unto L.M. Mace and Mark Mace, their heirs and assigns for a period of 99 years, All that certain lot of ground and buildings thereon, situate on North Main Street in the Borough of Greensburg, County of Westmoreland and State of Pennsylvania, bounded on the North by lot of David L. Newell, formerly the heirs of Henry Welty, deceased, on, on the East by Main Street, on the South by lot of Mrs. Anna Ogden and on the West by a public alley, fronting fifty-eight (58) feet and nine (9) inches ...