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CERBO v. CARABELLO (03/29/54)

March 29, 1954

CERBO
v.
CARABELLO, APPELLANT



Appeal, No. 301, Jan. T., 1953, from decree of Court of Common Pleas No. 5 of Philadelphia County, June T., 1952, No. 6916, in case of John Cerbo v. Natale Carabello and Grace Carabello. Decree affirmed.

COUNSEL

Frank F. Truscott and Frank Carano, for appellants.

Vito F. Canuso, for appellee.

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

Author: Arnold

[ 376 Pa. Page 573]

OPINION BY MR. JUSTICE ARNOLD

The plaintiff filed a complaint in equity, praying for specific performance of a contract to sell real estate, contained in an option in a lease executed by the defendants' grantors.

By written lease agreement dated March 17, 1950, the first floor, basement and garage of the premises in question were leased by Anthony Mazzeo to the plaintiff and Gus Cerbo. Gus Cerbo later assigned his interest in the lease to plaintiff. The term of the lease was for one year from March 20, 1950, to March 19, 1951, with the right in the lessee to renew the lease for four successive one year periods. The lease agreement further provided: "The leassee (sic) also reserved the privilege to buy in the title of the above mentioned premises for the sum of ($11,500.00) this privilege is extended to the leasee (sic), to be exercised by the lessee at any time durning (sic) this lease or any renewals of the one year terms."

Before the end of the first term, March 19, 1951, and likewise before March 19, 1952, the plaintiff sent notice to the lessor of the intention to renew the lease.

On July 9, 1951, the real estate agent for Mazzeo notified the lessees that Mazzeo desired to sell the property and was giving them first chance to purchase. There was no covenant in the lease agreement that he had any such right. This was merely an unsolicited attempt by Mazzeo or his agent to have lessees exercise the option at a time when they were not required to do so. Gus Cerbo appeared at the office of the agent and desired the agent to reduce the price from $11,500 to $11,000. Mazzeo agreed to sell the property to Cerbo for $11,000. Cerbo requested the real estate agent to get a mortgage for him. The agent obtained a commitment for a mortgage in the sum of $7,300 and notified Cerbo, who promised to make a deposit. He did not

[ 376 Pa. Page 574]

    appear at the office of the agent to make any deposit, although he had been requested on several occasions so to do; and on June 21, 1952, Mazzeo sold the premises to the defendants, who had express notice of the outstanding lease with option agreement to the Cerbos.

On July 28, 1952, the plaintiff notified the defendants in writing of his desire to exercise the option contained in the lease, and advising that settlement would take place on August 5, 1952. The defendants refused to ...


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