Appeals, Nos. 124 and 139, Oct. T., 1956, from decree and judgment of Court of Common Pleas of Northampton County, June T., 1952, No. 2, in case of Clark Hahn v. Frederick F. Andrews et ux. Decree dismissing defendants' motion for judgment n.o.v. affirmed; judgment reversed with venire.
Everett Kent, with him S. Maxwell Flitter, for plaintiff.
Francis H. S. Ede, for defendants.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).
[ 182 Pa. Super. Page 339]
Plaintiff, Clark Hahn, instituted an action of foreign attachment against Frederick F. Andrews and Rosemarie L. Andrews, his wife, seeking damages for the breach of an oral contract whereby plaintiff agreed to buy and defendants agreed to sell a certain retail oil business for the sum of $4,800.00. The plaintiff obtained a verdict in the sum of $1.00. The plaintiff filed a motion for a new trial because of the inadequacy of the verdict. The defendants filed a motion for judgment n.o.v. Both motions were dismissed by the lower court and both parties appealed. The facts and inferences therefrom most favorable to the plaintiff, he having won the verdict, may be summarized as follows:
[ 182 Pa. Super. Page 340]
On or about August 16, 1948 the parties entered into an oral contract in the sum of $4,800.00, and the plaintiff paid $2,500.00 on account. For his $4,800.00 the plaintiff was to receive the fuel oil business, including good will, and a 1946 G.M.C. fuel oil truck with the accessories included. In addition, the defendants promised to deliver to plaintiff the names and addresses of 85 to 100 customers and to visit the homes of the customers with plaintiff for the purpose of introducing him and recommending that they continue to purchase fuel oil from him. On the aforementioned date, the defendants stated that they were about to leave on vacation for about 10 days and after their return they would visit the homes of the customers with the plaintiff for the above mentioned purposes. At that time defendants were to transfer the title to the truck to plaintiff, after which the $2,300.00 balance of the purchase price was to be paid. On numerous occasions thereafter the plaintiff requested defendants to transfer the title to the truck and to visit the customers with him but the defendants refused to do so.
On March 7, 1949, the defendants, without notice to plaintiff, went to the parking lot where the plaintiff stored the oil truck and towed it away. Shortly thereafter the plaintiff instituted a suit in replevin and the jury rendered a verdict in favor of the defendants in the sum of plaintiff's declared value of $2,500.00. This judgment was affirmed by the Supreme Court. See Hahn v. Andrews, 370 Pa. 65, 87 A.2d 284. The replevin action merely determined the right to possession of the truck and the Supreme Court said that any claims which the purchaser may have against the seller must be asserted in an independent proceeding. The present action was undoubtedly brought for that purpose. As a result of the verdict for the plaintiff in the present case the status of the parties is now as follows:
[ 182 Pa. Super. Page 341]
On August 16, 1948, when the oral agreement was made, plaintiff paid to the ...