Appeal, No. 217, Jan. T., 1953, from decree of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1951, No. 712, in case of Joseph J. Paul and Frank Potere, trading as Paul's Delivery Service v. Thomas J. Kennedy. Decree affirmed; reargument refused February 10, 1954.
William Vincent Mullin, for appellant.
Henry J. Morgan, with him Raymond A. Speiser and Speiser, Satinsky, Gilliland & Packel, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
This is a Bill in Equity by a buyer for specific performance of a certain agreement of sale between him and the seller, in which the seller agreed to sell and to cause to be transferred to the buyer a Pennsylvania Public Utility Commission license as a common carrier of property, together with the equipment, trucks, accounts and good-will of the business conducted under the license, for a purchase price of $7,500.00.
Herbert Brenner, a business broker, was engaged by the seller to obtain a purchaser for his business, receive the purchase price and conclude the sale. Pursuant to his agency, Brenner inserted an advertisement in the newspapers. The advertisement was seen by the
buyer who entered into negotiations with Brenner. The Chancellor found as a fact that as a result of these negotiations, the seller and the buyer entered into a final written agreement of sale which was drafted and prepared by Brenner and executed by seller even before it was shown to buyer. Pursuant to the terms of the agreement and in full performance thereof by the buyer, the entire purchase price was paid by the buyer to Brenner in escrow for the seller. Brenner thereafter absconded with the money prior to performance of the agreement by the seller.
The narrow question presented on this appeal is: Upon whom shall fall the loss occasioned by Brenner's embezzlement? The lower Court decreed specific performance and the seller now appeals from that decree.
The pertinent provisions of the sales agreement are: "3. The said sum or sums of Seventy-five hundred dollars shall be placed with Herbert Brenner, at the signing of this agreement to be held by him in escrow until the approval by the Commonwealth of Pennsylvania of the transfer of the aforementioned P.U.C. License. Upon approval of the Commonwealth of Pennsylvania the said Herbert Brenner shall pay over to the said Thomas J. Kennedy [the seller] the monies held in escrow by him. 4. That on due execution of these agreements by the parties herein the said Thomas J. Kennedy [the seller] will file with the Commonwealth of Pennsylvania the necessary application for the transfer of the said P.U.C. License to the buyer. It is understood and agreed that the said Thomas J. Kennedy [the ...