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ABRAMS v. CROWN (07/21/55)

July 21, 1955

ABRAMS
v.
CROWN, APPELLANT.



Appeals, Nos. 76 and 77, Oct. T., 1955, from decree of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1953, No. 5274, in case of Elmer Abrams et ux. v. Eugene Crown and Harold J. Lowenthal, trading as Crown & Lowenthal, also trading as Lowenthal & Company, and Crown Construction Co. Decree affirmed.

COUNSEL

Reuben Singer, with him Meade & Singer, for appellants.

Herbert H. Hadra, with him Robert H. Arronson and Maurice Freedman, for appellees.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Wright

[ 178 Pa. Super. Page 409]

OPINION BY WRIGHT, J.

Elmer Abrams and Ethel Abrams, his wife, owned a property at 2512 North 32nd Street in the City of Philadelphia. Eugene Crown and Harold J. Lowenthal, trading as Lowenthal and Company, were real estate brokers, and were also erecting houses under the name of Crown Construction Company. On January 11, 1952, Abrams and his wife entered into a written agreement to purchase a house at 7602 Woodbine Avenue, for the sum of $17,990, and made a total cash deposit of $2,000. Contending that the sale of 2512 North 32nd Street was a condition precedent, and that a provision to that effect had been fraudulently omitted from the writing, Abrams and his wife filed a complaint in equity praying that the agreement be cancelled and that Crown and Lowenthal be directed to return the deposit. After taking testimony as Chancellor, Judge REIMEL filed an adjudication granting the prayer of the complaint. The Court en banc dismissed exceptions and entered a final decree "that defendants pay plaintiffs the sum of $2,000 with interest". This appeal followed.

A Chancellor's findings of fact, supported by adequate evidence and confirmed by the Court en banc, are conclusive on appeal: Wortex Mills v. Textile Workers Union, 380 Pa. 3, 109 A.2d 815. And see Pehlert v. Neff, 152 Pa. Superior Ct. 84, 31 A.2d 446; Stern v. Sanet, 169 Pa. Superior Ct. 448, 82 A.2d 511. Briefly summarizing the findings in the case at bar, appellants knew that it was necessary for appellees to

[ 178 Pa. Super. Page 410]

    sell 2512 North 32nd Street in order to raise funds to purchase 7602 Woodbine Avenue. Appellants assured appellees that they (appellants) would either sell the North 32nd Street property, or buy it themselves. They further represented that it was unnecessary to insert this provision in the written agreement and dissuaded appellees from seeking legal advice. The Chancellor expressly found that the condition precedent "was fraudulently omitted", and never performed.

Appellants first contend that "the Court erred in finding fraud where there was no proof of fraud". While we agree that fraud must be clearly proved and is never presumed, see Davis v. Carbon County, 369 Pa. 322, 85 A.2d 862, our review of the record in the case at bar indicates that there was ample evidence to support the decision of the lower Court.

It is argued that there was no misstatement of an existing material fact. See Devers v. Sollenberger, 25 Pa. Superior Ct. 64. Appellants cite cases holding that statements of intention to do some act in the future do not constitute fraud. Principal reliance is placed on Schmitt v. Johnston Co., 136 Pa. Superior Ct. 213, 7 A.2d 131. That case involved the purchase of shares of stock. Plaintiff alleged that at the time of execution of the written agreement, defendant orally promised reimbursement in the event plaintiff was discharged. There was no condition precedent to performance by plaintiff of his written agreement. Defendant's oral promise was clearly an undertaking to do something in the future. See also Blose v. Martens, 173 Pa. Superior Ct. 122, 95 A.2d 340. In the case at bar, however, in the words of Judge ALESSANDRONI ...


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