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LYTLE v. WALTERS. (06/11/57)

June 11, 1957

LYTLE, APPELLANT,
v.
WALTERS.



Appeal, No. 126, Oct. T., 1957, from decree of Court of Common Pleas of Blair County, June T., 1954, No. 214, in case of Joseph O. Lytle v. Sheldon L. Walters et ux. Decree affirmed.

COUNSEL

T. Dean Lower, for appellant.

Richard A. Carothers, for appellees.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Gunther

[ 184 Pa. Super. Page 247]

OPINION BY GUNTHER, J.

Joseph O. Lytle, plaintiff-appellant in this appeal, sold to Sheldon L. Walters and Helen V. Walters, defendants, a dry goods and grocery business for the sum of $3500.00, under Articles of Agreement. Defendants signed a judgment note in favor of the plaintiff for $3500.00 and agreed to pay $200.00 down and $150.00 or more per month on the balance. On July 22, 1954, plaintiff entered the judgment note against defendants and filed a Writ of Fieri Facias for $1,018.21, plus interest, attorney's commission and costs. On February 28, 1955, a petition for rule to open judgment was filed and a rule to show cause was granted. Amendments to the petition and answer were filed, deposition taken and a decree was entered opening the judgment.

The sole question before us is whether the lower court abused its discretion in opening the judgment.

In the petition to open judgment, appellees averred,

[ 184 Pa. Super. Page 248]

    inter alia, that on the 30th day of July, 1954, pursuant to the terms of the Articles of Agreement, they gave written notice to the plaintiff that it was their intention not to exercise the option to purchase the personal property and thereupon returned the property to the plaintiff. The appellant not only denied the allegations that the appellee had an option to purchase the property involved, but in the answer averred that defendants were liable for the full selling price of $3500.00. Before proceeding further we are required to consider the Articles of Agreement which read as follows:

"ARTICLE OF AGREEMENT

"MADE this 11th day of February 1954, between Joseph O. Lytle and Sheldon L. Walters and Helen V. Walters his wife WITNESS, That the said Joseph O. Lytle and assigns, in consideration of the sum of Two Hundred ($200.00) dollars to Him paid, receipt of which is hereby acknowledged, gives to the said Sheldon L. Walters & Helen V. Walters or assigns, the exclusive right to purchase at any time within on Final Payment from the date hereof, all that certain Soft Drink Cooler, Soda Fountain, Meat Case, Meat Blocks, Desk, 3 Show Cases, All shelves except a Section of Black belongs to Building; Meat Grinder, Slicer, Scales, Cash Register, Counters, all Merchandise in Store Room, with above equipment located in Fay Building 410 Second Street Williamsburg, Penna. for the sum of ($3500.00) ...


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