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LEHNER v. MONTGOMERY ET AL. (01/17/56)

January 17, 1956

LEHNER
v.
MONTGOMERY ET AL., APPELLANTS.



Appeals, Nos. 158, 163, 154 and 164, April T., 1955, from decree of Court of Common Pleas of Washington County, in Equity, No. 5216, in case of John Lehner, Jr. v. George J. Montgomery et al. Decree reversed.

COUNSEL

Ralph W. Peacock, for appellants.

W. E. Porter, with him Docktor & Porter, for appellee.

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

Author: Ross

[ 180 Pa. Super. Page 496]

OPINION BY ROSS, J.

These are appeals from a decree for specific performance entered on the plaintiff's motion for judgment on the pleadings.

On October 1, 1954, the plaintiff, John Lehner, Jr., filed a bill in equity seeking specific performance of a contract for the purchase of land of the defendants Montgomery, which they had subsequently conveyed to the defendants Johnston. The contract was purportedly entered into on February 11, 1952 by a real estate agency, one of whose partners sent a letter to plaintiff as a receipt for a down payment, and which he asserts as a memorandum of the completed contract. Defendants filed an answer denying that a contract was entered into, but admitting that certain preliminary arrangements were made by the real estate agents. They answered further that the conveyance to the Johnstons was made after plaintiff failed to complete the arrangements and "failed to comply with the verbal understanding concerning the transfer of title to him within a reasonable time." (Defendant J. Elmer Johnson is one of the partners in the real estate agency involved). Under new matter (to which plaintiff filed no reply), they set up the defenses of laches and the statute of frauds, Act of March 21, 1772, 1 Sm.L. 389, 33 P.S. sec. 1. Plaintiff's motion for judgment on the pleadings was granted, the lower court decreeing specific performance and ordering the defendants to convey the property to the plaintiff. These appeals followed.

Contracts for the sale of land, by virtue of the protection of the statute of frauds, must be in writing. Oral contracts ordinarily will not be specifically enforced unless the plaintiff brings himself within the

[ 180 Pa. Super. Page 497]

    equitable doctrine of "part performance," Haskell v. Heathcote, 363 Pa. 184, 187, 69 A.2d 71; or unless the defendant admits, either in his pleadings or at the trial, the existence of the contract. Zlotziver v. Zlotziver, 355 Pa. 299, 49 A.2d 779. An oral contract may also be enforced by virtue of the defendant's failure to take advantage of the statute of frauds in his pleadings or failure to make any objection to the admission of evidence of the oral contract at the hearing. Suchan v. Swope, 357 Pa. 16, 21, 53 A.2d 116. These exceptions are recognized because there is little likelihood that the owner is being made the victim of a fraud of obtain his land when such circumstances are present.

In his complaint, the plaintiff avers "3. On February 11, 1952, Johnston and McNary, a partnership engaged in the real estate business, being the duly authorized agents of the defendants George J. Montgomery and Eleanor C. Montgomery, and acting within the scope of their authority as such agents, entered into an agreement to sell said tract of land to the plaintiff ... and prepared, signed, and ...


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