Appeal, No. 160, Oct. T., 1954, from judgment of Court of Common Pleas of Delaware County, Nov. T., 1952, No. 478, in case of Helen E. Harrison v. George J. Hykel et ux. Judgment reversed.
Robert F. Jackson, for appellant.
Thomas J. Reilly, with him Reilly & Pearce, for appellees.
Before Rhodes, P.j., Ross, Gunther, Wright, Woodside and Ervin, JJ. (hirt, J., absent).
[ 178 Pa. Super. Page 119]
This is an appeal from the refusal of the court below, sitting in banc, to take off compulsory non-suit entered against plaintiff, Helen E. Harrison, and the entry of judgment for defendants, George J. Hykel and Yvonne Hykel, his wife, in an assumpsit action. Plaintiff, as buyer, and defendants, as seller, entered into a written agreement providing for the purchase and sale of certain goods, fixtures, chattels, business, and equipment and the transfer of liquor license of a restaurant owned and operated by the defendant George J. Hykel, at 2225 East Darby Road, Havertown, Haverford Township, Delaware County, Pennsylvania.
Among other things, the agreement provided: "The Seller agrees that prior to settlement and as a condition precedent thereto, Seller will fully comply with the provisions of the Bulk Sales Act as amended,..." The principal question on appeal, as in the court below, is whether, on the record, as a matter of law the court could say that the buyer did not have the right to declare the agreement null and void and to demand a return of the initial payment in the amount of $1,750,
[ 178 Pa. Super. Page 120]
because the seller failed to furnish the buyer with a list of creditors under the Bulk Sales Act at least ten days before the date fixed in the agreement for settlement.
This action was instituted by the buyer to recover the down payment to the seller. At the completion of plaintiff's evidence, the trial judge withdrew the case from the jury and entered a compulsory non-suit. The court in banc refused plaintiff's motion to take off the non-suit, and plaintiff has appealed.
On appeal from the refusal to take off the compulsory non-suit, the oral evidence must be viewed in the light most favorable to the plaintiff, and she must be given the benefit of every fact the jury might reasonably infer in her favor from the evidence received or erroneously excluded. Kimble v. Wilson, 352 Pa. 275, 277, 42 A.2d 526; Act of March 11, 1875, P.L. 6, § 1, 12 PS § 645. Moreover, plaintiff is entitled to the construction of the agreement as favorable to her as the writing will permit. Cirotti v. Wassell, 163 Pa. Superior Ct. 292, 295, 60 A.2d 339.
The facts appear from the evidence or are admitted under the pleadings, and are such as the jury might have found. The agreement was dated August 15, 1952, and provided for a down payment of $1,750 by the buyer, which was to be forfeited as liquidated damages in case of default by the buyer. The balance of $15,750 was to be paid in escrow to plaintiff's attorney, Edward A. O'Neill, Esq., and held "pending written approval of the transfer of the said [liquor] License to the Buyer by the Pennsylvania Liquor Control Board, at which time said funds are to be disbursed in accordance with the terms and conditions of this ...