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FREY v. NAKLES (03/14/55)

March 14, 1955

FREY
v.
NAKLES, APPELLANT.



Appeal, No. 229, March T., 1954, from judgment of Court of Common Pleas of Westmoreland County, Feb. T., 1952, No. 405, in case in Lewis A. Frey et ux. v. Elias S. Nakles et ux. Judgment affirmed.

COUNSEL

Paul W. Mahady, with him Mahady & Mahady, for appellants.

D. J. Snyder, Jr., with him Kunkle & Trescher, for appellees.

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

Author: Chidsey

[ 380 Pa. Page 617]

OPINION BY MR. JUSTICE CHIDSEY

This action in assumpsit was brought by Lewis A. Frey and Jentila T. Frey, his wife, the vendees in a written agreement for the sale of the hotel and restaurant business, against the defendants, Elis S. Nakles and Latife Nakles, his wife, the vendors, to recover damages on account of the failure of the defendants to convey the business in accordance with the terms of the agreement. The plaintiffs claimed as damages a down payment of $1,000, received by the defendants

[ 380 Pa. Page 618]

    on the execution of the agreement, expenses incurred in reliance on the contract and anticipated loss of profits from the operation of the business. The jury returned a verdict for the plaintiffs in the sum of $5,076. After defendants' motions for a new trial and judgment non obstante veredicto were refused by the court en banc and judgment entered on the verdict, defendants took this appeal.

Considering the evidence in the light most favorable to the plaintiffs, the following facts appear. Early in December of 1950 defendants engaged John E. Herman, a real estate broker in Westmoreland County, to sell a hotel and liquor license business owned by them in the Borough of Latrobe, Pennsylvania, known as the "National Hotel". The defendants informed Mr. Herman that the business realized $15,000 net profit per year and the agent so advertised in the Pittsburgh Press. The advertisement caused the plaintiffs to seek information concerning the business from Mr. Herman, who arranged a meeting for the following day between the plaintiffs and the defendants. As a result of the meeting between the parties and the plaintiffs' physical inspection of the premises and of defendants' books, an agreement of sale was entered into on December 19, 1950 which provided in substance that the vendors agreed to sell and convey the hotel and restaurant business, including the furnishings and equipment, and to cooperate in every way in having the liquor license transferred to the purchasers. The agreement provided further for a lease of the property on which the business was conducted, title to which was in the name of both defendants, as tenants by the entireties, for a period of five years, beginning January 1, 1951 at a monthly rental of $400. The selling price of the personalty was $11,000, of which $1,000 was to be paid at the execution of the agreement, $5,000 on or before

[ 380 Pa. Page 619]

January 1, 1951, and the balance of $5,000 was to be secured by a judgment note bearing interest at 4%. The entire transaction was to be consummated by the execution of all necessary papers on or before January 1, 1951.

Shortly thereafter the plaintiffs contacted A. Frank Steiner, Esquire for the purpose of preparing the instruments required for a transfer of the liquor license, a bill of sale and a lease. The closing date was extended by mutual assent in order to effectuate the transfer of the liquor license which was in the name of William F. and Helen N. Frichtel, the son-in-law and daughter of defendants. All of the necessary papers for the transfer of the license had been executed by the parties and returned by the Pennsylvania Liquor Control Board by January 16, 1951. On that date the parties met in Mr. Steiner's office and the lease was signed by the plaintiffs and the defendant Elias S. Nakles. However, the wife-defendant, Latife Nakles, having signed all other papers, refused to execute the lease. Plaintiffs, on the other hand, presented certified checks payable to the order of the defendants in the sum of $5,000 and $400 toward the purchase price and the first month's rent, respectively. As before stated, they had theretofore paid the down money of $1,000. Subsequent to this meeting defendants through their present counsel submitted a lease to the plaintiffs which in effect provided for a reassignment of the liquor license to the defendants upon any default in the lease or sale ...


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