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L. E. WALLACH v. TOLL. (04/18/55)

April 18, 1955

L. E. WALLACH, INC., APPELLANT,
v.
TOLL.



Appeal, No. 129, Jan. T., 1954, from decree of Court of Common Pleas of Montgomery County, Sept. T., 1952, No. 15, in case of L. E. Wallach, Inc. v. Joseph Toll, Edward J. Boyle, Edith D. Tobin and Donnelly & Suess, Inc. Decree reversed.

COUNSEL

Maurice S. Levy, with him Albert B. Soffian and Leon H. Fox, for appellant.

Thomas M. Garrity, with him Raymond Pearlstine, David Kanner, Wisler, Pearlstine, Talone & Gerber, and Edward J. Swotes, for appellees.

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

Author: Stern

[ 381 Pa. Page 424]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

The controlling facts in this case are not in dispute and tell their own story. They concern the rights of the corporate lessee under a clause of the lease granting it a certain option privilege to purchase the demised premises.

The lease was dated November 13, 1951. It demised the one-story store property situate at No. 6 East Lancaster Avenue, Ardmore, to be used for the sale of shoes, accessories and surgical appliances, for the term of 10 years beginning May 1, 1952, at a rental of

[ 381 Pa. Page 425]

$425.00 a month. It contained the following provision: "Lessee has first option to buy property at price offered by purchaser, but must agree within one week whether or not he will meet offer."

On January 31, 1952, which was before the lessee entered into possession, the agents of the lessors wrote to its Secretary and Treasurer, Louis E. Wallach, a letter in which they stated that "In accordance with the terms of the lease which you signed on November 13, 1951 for the store at No. 6 East Lancaster Ave. Ardmore, Pa. we are writing to advise you we have an offer of $105,000.00 cash for the sale of premises No. 6-8-10 E. Lancaster Avenue, Ardmore, Pa. and if you desire to exercise your option to purchase same, you will have to notify us in writing not later than February 8th, 1952, otherwise the properties will be sold without further notice to you."

The following day Wallach wrote to the agents as follows: "In answer to yours of January 30th, I think you have the issue a little confused. You just state in your letter the price of three buildings. My option only holds good for No. 6 E. Lancaster. I am not interested in No. 8 and 10 at all. Therefore, I think you should brake [sic] this price down and advise me what No. 6 is being sold for, as that is all I am concerned with. Then, when I receive that information, I will be in a better position to tell you what to do. Also will you adjust the date that you are advertising me, so that the ten days will be moved back."

On February 4 the agents wrote: "In reply to your letter of February 1st, 1952, the sale price on your building along [sic], No. 6 E. Lancaster Ave., ...


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