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TODD v. SKELLY. (03/13/56)

March 13, 1956

TODD, APPELLANT,
v.
SKELLY.



Appeal, No. 31, Jan. T., 1956, from judgment of Court of Common Pleas of Montgomery County, Nov. T., 1949, No. 284, in case of Walter H. Todd v. Daniel A. Skelly and Norristown Penn Trust Company. Judgment affirmed.

COUNSEL

Samuel D. Goodis, with him William A. Kelley, Jr. and Folz, Bard, Kamsler, Goodis & Greenfield, for appellant.

Harold W. Spencer, with him Franklin L. Wright and Wright, Mauck, Hawes & Spencer, for appellee.

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

Author: Bell

[ 384 Pa. Page 424]

OPINION BY MR. JUSTICE BELL

Plaintiff brought an action of trespass in which he claimed a judgment against defendants in the amount of $278,322. Preliminary objections in the nature of a demurrer filed by the defendant bank were sustained. Plaintiff's amended complaint in trespass averred the following facts:

[ 384 Pa. Page 425]

Plaintiff is a builder and real estate developer. Defendant Skelly is in the real estate business and is and was at the times in question a director of the bank. Plaintiff submitted an offer of purchase to the owners of a 19 acre tract of undeveloped ground known as the Simon Tract, on the condition that he was able to obtain a change in zoning from A to B Classification. On January 8, 1948, the owners advised plaintiff by letter that they would sell him the ground for 35,000. cash.

Plaintiff on January 9, 1948, thereupon discussed with Barrett, who was secretary and a director of defendant bank, his plan to purchase this tract and subsequently sell it for a super market if the zoning could be changed; and at the same interview he made an oral application for a mortgage loan of $27,000. upon the security of the Simon tract of land. On January 14, 1948, plaintiff signed a printed form of application for a loan of $27,000. to be secured by a first mortgage on plaintiff's home and the Simon Tract, upon Barrett's assurance that it would be acted upon in three or four days. Plaintiff paid Barrett $15. [the usual charge] to cover the cost of an appraisal of the real estate, which was to be made by the bank's appraisers. On January 19, 1948, Mr. Steel, Mr. March and defendant Skelly, all of whom were directors of defendant bank, informed plaintiff they had been designated by the bank to appraise the real estate offered by plaintiff as security for the proposed mortgage loan. On January 28th, plaintiff received a letter from defendant bank, dated January 27, 1948, the pertinent part of which is as follows: "... our Executive Committee felt they would not be justified in recommending this loan for approval for the investment of trust funds due to the conditions surrounding it, with which, of course, you are familiar. This entire program depends on whether

[ 384 Pa. Page 426]

    or not you will be able to have the zoning ordinance changed, permitting the erection of a super market on a part of the vacant tract; the actual purchase of the property depends on this zoning ordinance being changed to permit this. Presuming you would have the ordinance changed, possibly your prospective purchasers would not go through with the purchase, in which case we would have rather a large mortgage, secured to a great degree by vacant ground.*fn1 I am sorry, Walter, we felt obliged to take this stand but want you to know it was given every consideration, as our Real Estate Committee, as noted above, has several meetings in connection with it. We thank you for placing the application with us. Yours very truly, /s/ B.B. Barrett Secretary."

Thereafter, (no date being stated), plaintiff's sister offered to advance to him $25,000. on the security of a mortgage on the Simon tract. On February 9, 1948, plaintiff informed counsel for the owners that he desired to accept the offer set forth in the owner's aforesaid letter to him dated January 8th. Counsel for the owners then informed plaintiff he could not accept the offer because Skelly had submitted an offer of $40,000. for the Simon Tract, which offer had been accepted.*fn2 "Pursuant to [Skelly's] offer, the heirs of Catherine Simon conveyed to David E. Freedman and Reba S. ...


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