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MCGARY v. LEWIS. (01/13/56)

January 13, 1956

MCGARY, APPELLANT,
v.
LEWIS.



Appeals, No. 305, Jan. T., 1955, from decree of Court of Common Pleas of Clearfield County, April T., 1954, No. 1, in Equity, and No. 328, Jan. T., 1955, from judgment of Court of Common Pleas of Clearfield County, April T., 1954, No. 135 1/2, in cases of David McGary v. Robert M. Lewis et ux.; and Margaret S. Lewis et vir v. David McGary. Judgment and decree affirmed.

COUNSEL

Clarence R. Kramer, with him William C. Chase, for appellant.

Joseph J. Lee, with him Frank A. Whitsett, and Whitsett & Lee, for appellee.

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

Author: Bell

[ 384 Pa. Page 174]

OPINION BY MR. JUSTICE BELL

The facts in these appeals are complicated and the issues arising thereout difficult of solution.

McGary filed a complaint in equity on March 19, 1954 against Lewis and Margaret S. Lewis, his wife, seeking to reopen and change a judgment he had obtained against Lewis into a judgment against Lewis and his wife. McGary alleged that he was deceived by Lewis, and by Mrs. Lewis's silence into believing that Lewis was the sole holder of the title to the St. Could Hotel and the personal property contained therein. The St. Cloud Hotel was owned by Robert M. Lewis and Margaret S. Lewis, his wife, as tenants by the entireties, as clearly appeared from the records in the Office of the Recorder of Deeds; the personal property therein was owned by Mrs. Lewis.

The Court below made the following findings and conclusions:

[ 384 Pa. Page 175]

"1. The plaintiff, David McGary, bid on a hotel business set forth in an advertisement appearing in the Clearfield Progress November 17, 1951, as follows:

"NOTICE ST. CLOUD HOTEL

"The undersigned will offer at public sale on Saturday, the 1st day of December, 1951, on the premises situate on Good and Hannah Streets in Houtzdale, Clearfield County, Pennsylvania: One Hotel building containing 21 furnished sleeping rooms, fully equipped bar, dining room and kitchen. Also liquor and beer license. This building and business will be offered for sale as a going business. All bidders and prospective bidders are hereby notified that the owners*fn* and auctioneer expressly reserve the right to reject any or all bids. 25% is required on purchase price when knocked down to bidder. Balance on delivery of deed. George 'Brody' Fox, Auctioneer. 11/17-21-24-26-28-30-ch.

"2. David McGary bid the sum of $10,000.00, and the property as advertised was sold to him.

"3. On December 3, 1951, the plaintiff paid the sum of $2500.00, at the Houtzdale Bank, received receipt therefor, as follows: Houtzadle, Pa. Dec 3 1951 Cert. No. - RECEIVED FROM THE HOUTZDALE BANK Bonds Nos. - David A McGary Twenty five ($2500.00) hundred Dollars on account St. Cloud Hotel. Balance to be paid on delivery of deed - not later than December 8, 1951. J. Howard Smith for Robert M. Lewis.

"4. Robert M. Lewis, one of the defendants, brought an action to recover the balance of the purchase price from David McGary, on which action McGary filed counterclaim which resulted in non-suit of the Robert M. Lewis claim, and a directed verdict in favor of David A. McGary and against Robert M. Lewis in the sum of $2698.36, the amount of the $2500.00 paid

[ 384 Pa. Page 176]

    by him, plus interest, upon which judgment was entered on the 29th of July, 1953, in favor of David ...


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