Appeal, No. 43, Jan. T., 1955, from decree of Court of Common Pleas of Bucks County, Dec. T., 1951, in Equity, No. 5, in case of Warner Co. v. G. Stewart MacMullen and Adelaide S. MacMullen. Decree affirmed.
Paul I. Guest, with him Achey & Power, for appellants.
George T. Kelton, with him Eastburn, Begley & Fullam, for appellee.
Before Stern, C. J., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
This is an appeal by defendants from a decree of the court below granting plaintiff specific performance of an agreement for the sale of real estate.
Hugh B. Eastburn, Esq., representing plaintiff Warner Company, desired to purchase for it a certain tract of approximately 21 acres of land in the Borough
of Tullytown, Bucks County. Having learned that defendants, G. Stewart MacMullen and Adelaide S. MacMullen, were the owners of the property, he visited MacMullen and entered into negotiations with him for the purchase of the property. During the course of their conversations he made it clear that he was acting as agent for the prospective purchaser; he spoke throughout of "his client." They finally arrived at an understanding in pursuance of which a written agreement was entered into on December 6, 1950, wherein Eastburn, Agent for defendants, agreed to sell the property to one George B. Ermentrout. Eastburn stated that Ermentrout was a straw party but he declined to reveal the identity of the real purchaser. The agreement was signed by Eastburn, Agent, and by Ermentrout, and was approved by defendants over their signatures. The purchase price was $15,000, of which $1,000 was paid on account. The agreement provided for settlement to be made within 90 days, said time to be of essence of the agreement. "Formal tender of deed and tender of moneys" were waived. Defendants agreed to have a new survey and plans made by one William S. Erwin at their expense, and to pay Eastburn, Agent, a commission of 5% on the sale price. The day after the agreement was executed Ermentrout assigned his right, title and interest therein to plaintiff Warner Company.
On March 1, 1951, John P. Fullam, Esq., an associate of Eastburn, arranged with MacMullen for settlement at his law office in Bristol on the evening of March 6, 1951, which was the 90th day after the execution of the agreement. At the time thus fixed a telephone conversation was had between MacMullen and Fullam but what was said by each of them on that occasion is the subject of controversy. Fullam's version is that MacMullen stated that he could not come
that evening and suggested the settlement be effected instead by Fullam mailing him the deed for execution and paying him the purchase money on delivery of the deed, to which proposal Fullam agreed; accordingly the following day Fullam did mail him the deed, together with the title companies settlement sheets for his approval. MacMullen, on the other hand, testified that the reason why he refused to meet for settlement on the evening of March 6th was because Fullam told him that a check for the purchase money would not be delivered to him until after the deed for the property had been recorded by the title company; he did admit, however, that it was arranged between them that Fullam should mail him the deed for signature although he understood that a certified check would be sent with the deed. Be all that as it may, what happened was that on or about the 8th or 9th of March, Seymour L. Green, Esq., acting as attorney for defendants, telephoned Fullam that there was an error in the survey which Erwin had prepared and in the description in the deed in that the agreement of sale had provided that there should be reserved to defendants a certain small triangular piece of the tract but due to one of the lines of the survey being misplaced the reserved portion as described in the deed was slightly less in acreage than it should have been. Thereupon Fullam and Green agreed that a corrected survey should be prepared, the description in the deed modified in accordance ...