The opinion of the court was delivered by: LORD
McCloskey Homes, Inc., one of the defendants, has filed a motion to dismiss the complaint as to it on the ground that it fails to state a claim upon which relief can be granted.
Plaintiffs entered into a written agreement with McCloskey & Co. of Florida, the other defendant, in which they agreed to purchase, and McCloskey & Co. of Florida covenanted to sell, the premises described therein as Lot 296, Patton Road, Whitemarsh Village, Montgomery County, Pennsylvania. This lot was to be improved with the erection of a dwelling house substantially similar to an exhibit house, situate at the residential development, known as Whitemarsh Village, in which the property is located.
The premises, with the dwelling house erected thereon, contemplated by the agreement of sale with the one signatory defendant, McCloskey & Co. of Florida, was conveyed to the plaintiffs by a deed executed by defendant, McCloskey Homes, Inc.
The plaintiffs' action is based upon the agreement of sale, and they allege, in substance, that the agreement has been breached in that the dwelling house conveyed to them was substantially different from the dwelling house which was to have been constructed in accordance with the agreement.
The complaint contains no averment that McCloskey Homes, Inc. was a party to the agreement of sale, or that this defendant was under any legal contractual obligation under such agreement. There is no allegation in the complaint that objections were interposed by the plaintiffs at the time of the delivery of the deed, as to the form thereof or as to the title of the land conveyed.
The plaintiffs, under the covenants of the agreement of sale, were not bound to accept a deed from any grantor other than McCloskey & Co. of Florida, the seller. Hopkins v. Phillips, 1921, 76 Pa.Super. 243.
The complaint does not contain any allegations that the grantor, McCloskey Homes, Inc., has done any act that would tend to impair their title to the land upon which the dwelling house has been erected or to disturb their possession of such property. Further, the complaint fails to set forth the form, tenor, or the covenants or warranties of the deed in whole or in part.
The complaint in the present action, viewed in the light most favorable to the plaintiffs, fails to state a claim against the defendant, McCloskey Homes, Inc., upon which relief can be granted.
For the above reasons, the motion to dismiss the complaint as to the defendant, McCloskey Homes, Inc., should be granted.
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