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MAILEY v. RUBIN. (03/18/57)

March 18, 1957

MAILEY, APPELLANT,
v.
RUBIN.



Appeal, No. 110, Jan. T., 1957, from judgment of Court of Common Pleas of Montgomery County, April T., 1954, No. 361, in case of John J. Mailey v. Alexander N. Rubin et al. Judgment affirmed.

COUNSEL

Samuel I. Sacks, with him Lee B. Sacks and Thomas F. Doran, for appellant.

Alexander N. Rubin, Jr., with him Thomas E. Waters and Goff & Rubin, for appellees.

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

Author: Musmanno

[ 388 Pa. Page 75]

OPINION BY MR. JUSTICE MUSMANNO

John J. Mailey, the plaintiff in this case, entered into a written agreement with the defendants, Alexander and Edna Rubin, for the purchase of a tract of

[ 388 Pa. Page 76]

    land which he intended to subdivide into lots. The contract carried the provision: "Premises to be conveyed clear of all liens and encumbrances, excepting existing restrictions and easements, if any. It is understood there is no Deed restriction prohibiting the dividing of the land, and that it can be divided and approved by Lower Merion Township according to existing zoning." After making the agreed-upon deposit of $6,000, the plaintiff learned that prior deeds would prevent him from building in accordance with current zoning regulations, because some pre-existing restrictions by deed specified that all buildings on the land should set back further distances from the bordering streets than the zoning regulations required. The plaintiff regarded these restrictions, of which he had not been previously informed by the defendants, as a breach of warranty in the agreement of sale and accordingly demanded return of the $6,000 deposit, to obtain which he initiated a suit in assumpsit. The defendants filed an answer to the complaint and then moved judgment on the pleadings. After hearing arguments, the lower Court entered judgment in favor of the defendants.

In their brief to this Court, plaintiff's counsel ask "that the plaintiff should be given his day in court to prove his allegations." He does not need to prove his allegations. They have been admitted by the defendants. The decision of the court below is predicated on the assumption that all the averments in the plaintiff's complaint are accepted as true. The only question before us is, whether, accepting the plaintiff's averments an indisputable fact, he has presented a prima facie case for the recovery of his $6,000.

In their brief, plaintiff's counsel call specific attention to the fact that the second sentence of the first paragraph of the agreement of sale, quoted above, was typewritten, whereas the first sentence was printed.

[ 388 Pa. Page 77]

They cite the case of Onofrey v. Wolliver, 351 Pa. 18, 23, to the effect that: "Where written and printed portions of a contract are repugnant, printed must yield to written clauses, as written clauses presumably constitute deliberate expression of the real intent of the parties." The only flaw we find in this discharge of meritorious artillery is that it has no target. No one questions the correctness of the quoted rule. Of course, the typewritten insertion prevails over the stereotyped printed matter. But accepting the typewritten sentence ipsissimis verbis as unchallengeable, it still is no barrier ...


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