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DIPOMPEO v. PRESTON. (06/25/56)

June 25, 1956

DIPOMPEO, APPELLANT,
v.
PRESTON.



Appeal, No. 169, Jan. T., 1956, from decree of Court of Common Pleas No. 7 of Philadelphia County, June T., 1954, No. 11180, in case of Rocco DiPompeo and Ermanno Borza v. William Preston, Sr. et al. Decree reversed. Equity for specific enforcement of agreements of sale. Before CRUMLISH, J. Adjudication filed finding for defendants; exceptions to adjudication dismissed and final decree entered. Plaintiffs appealed.

COUNSEL

William T. Adis, for appellants.

Augustine J. Rieffel, for appellees.

Before Stern, C.j., Jones, Chidsey, Musmanno and Arnold, JJ.

Author: Musmanno

[ 385 Pa. Page 513]

OPINION BY MR. JUSTICE MUSMANNO

From time to time in the year 1954, and prior thereto,

[ 385 Pa. Page 514]

Ermanno Borza, who, as a shoemaker, plied his trade at 5641 Chew Street, Philadelphia, would leave his lasts to visit a taproom only five doors away to refresh himself with a glass or two of beer. On some of these visits, as he was waited on by Mrs. Alice B. Preston, proprietor of the premises, he would say to her: "Mrs. Preston, you're too nice to be behind the bar." On the morning of August 15, 1954, Mrs. Preston returned the courtesy of Borza's business by calling at his place of business with a pair of shoes for repairing. At the shoemaker shop she and Borza again took up their apparently favorite subject for conversation, namely, the possible sale of the Preston taproom. On the afternoon of that same day, Borza reappeared at the taproom and said to Mrs. Preston: "Sell the place ... and you will be a better woman, and go away."

Although Mrs. Preston owned the land and building which accommodated the drinking place, the liquor license for the establishment was registered in the name of her husband William Preston, Sr., and her son, William Preston, Jr. After the conversation in the taproom on the afternoon of August 15th, Borza communicated with his friend, Rocco di Pompeo, who was a steel worker, but, like the shoemaker, also entertained the desire to go into business. In full cooperation, the shoemaker and the steelworker now engaged the services of an attorney, T. G. Leomporra, and the three of them proceeded to Prestons to offer $12,000 for the real estate and $11,000 for the liquor license. Attorney Leomporra drew up two agreements, which after being read to all the persons concerned, were signed by them. The purchasers then turned over to Attorney Leomporra $500 to hold in escrow, pending transferring of the liquor license, but they did not make the $500 cash down payment stipulated in the agreement for the sale of the real estate.

[ 385 Pa. Page 515]

Two days later the Prestons expressed an intention to repudiate the agreements and then on August 10th, through counsel, they notified Attorney Leomporra that they were rescinding the agreements because of the failure of plaintiffs to make the cash down payment on the real estate transaction. Di Pompeo immediately offered the $500 in cash but the Prestons refused to accept it, whereupon Di Pompeo and Borza instituted an action in equity to compel specific performance of the agreements. The Court of Common Pleas (No. 7) of Philadelphia County dismissed the complaint and this appeal followed.

The Chancellor in the Court below was of the belief that the neglect in proferring the $500 cash payment at the time of the signing of the agreements constituted a failure of consideration which vitiated the entire transaction since, according to the Chancellor, the two agreements were interdependent. In this rationalization the learned Chancellor erred. The $500 was not the consideration itself, it was only, as specifically stated, a down payment. The consideration moving from the plaintiffs was the offer to pay $12,000 for the real estate, and the consideration moving from the defendants to the plaintiffs was their promise to convey the real estate. It is to be noted in this connection that, standing alone, failure to pay money on a designated day does not of itself justify rescission. In the case of Morrell v. Broadbent, 291 Pa. 503, 505, this Court said: "Ordinarily, failure to pay money on a particular day is not such material departure from the terms of a contract as to justify a rescission by the other party, ...


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