Appeal, No. 200, March T., 1953, from order of Court of Common Pleas of Allegheny County, Oct. T., 1952, No. 3333, in case of J. Leonard Broido et ux. v. John R. Kinneman, Jr. et al. Order reversed.
Charles F. C. Arensberg, with him Charles C. Arensberg and Patterson, Crawford, Arensberg & Dunn, for appellants.
John A. Metz, Jr., with him Joseph S. Rosenbaum, Broido & Rosenbaum and Metz & Metz, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
This appeal is from an order sustaining preliminary objections filed by the plaintiffs to the defendants' counterclaim in an action of assumpsit. Although the appellees made no point of it, a question as to the appealability of such an order was raised at bar, a final judgment on the merits of the plaintiffs' claim and the defense thereto not yet having been entered.
The order is appealable nonetheless. Its intendment and effect was to put the defendants out of court so far as their counterclaim was concerned. To that extent the order was final and would, no doubt, have impeded the defendants if unreversed before trial of the plaintiffs' claim. In so saying, we do not mean to suggest that a final judgment on the original issue raised by the complaint could not have been awaited by the defendants or that, upon appealing from such final judgment, the action of the court below, in sustaining preliminary objections to the counterclaim, could not then have been assigned for error. But, obviously, such a course would not have afforded expeditious procedure for the ultimate disposition of
the entire controversy. Counsel for the plaintiffs freely and frankly admitted at bar that, if the order were not reversed, he would expect to have the defendants' counterclaim withheld at trial from submission to the jury as being res judicata. In Riling v. Idell, 291 Pa. 472, 476, 140 A. 270, a petition to strike off the defendants' counterclaim (which in effect raised a question as to its legal sufficiency) was treated without objection as a statutory demurrer in the court below and, accordingly, was so treated in this court. In reviewing the order, we said that making the rule absolute "... effected a dismissal of the counterclaim, which as to defendants' demand was definitive, and an appeal lies, for its effect was to finally end their right to further assert the cause of action alleged: Miller Paper Co. v. Keystone C. & C. Co., 275 Pa. 40."
We come then to the question whether the preliminary objections to the counterclaim should have been sustained. For that, a recital of the facts which gave rise to the claim and counterclaim becomes necessary.
By formal writing the defendants agreed to sell to the plaintiffs a certain described house and lot, in fee simple, clear of encumbrances (with stated exceptions not presently material), for which the plaintiffs agreed to pay a specified price, a part thereof being paid as hand money upon the signing of the agreement and the balance payable upon delivery of the deed. The agreement further provided that "Should the buyer fail to make settlement,... the sum or sums paid on account of the purchase price, at the option of the seller, may be retained by the seller, either on account of the purchase money, or as liquidated damages." The defendants duly tendered the plaintiffs a deed ...