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STEPHENSON ET UX. v. BUTTS ET AL. (06/11/58)

June 11, 1958

STEPHENSON ET UX., APPELLANTS,
v.
BUTTS ET AL., APPELLANTS.



Appeals, Nos. 141 and 142, Oct. T., 1958, from judgment of Court of Common Pleas of Montgomery County, Nov. T., 1956, No. 293, in case of George M. Stephenson et ux. v. Joan Butts et al. Judgment, as modified, affirmed.

COUNSEL

J. William Ditter, Jr., with him Ditter & Ditter, for plaintiffs.

J. Webster Jones, with him Richard S. Clover, for defendants.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).

Author: Gunther

[ 187 Pa. Super. Page 56]

OPINION BY GUNTHER, J.

These appeals are from the judgment and order of the Court of Common Pleas of Montgomery County,

[ 187 Pa. Super. Page 57]

    arising from the sale of real estate. The case was begun by a suit in assumpsit by George N. Stephenson and Arlene V. Stephenson, his wife, against Joan Butts and Ralph C. Wagner to recover the balance due on an agreement of sale which the latter failed to perform.

Plaintiffs entered into an agreement to sell certain real estate to the defendants for $18,000 upon which they received $500 hand money. Upon the date set for closing, the purchasers failed to make settlement and thereafter the action was commenced. A judgment on the pleadings was entered against defendants and in favor of the plaintiffs in the amount of $17,500 conditioned upon plaintiffs depositing a deed with the Prothonotary to be delivered to the defendants upon the payment of the judgment. Two and one-half months after the judgment was entered, the vendors petitioned the court below for a modification of the judgment, alleging that the purchasers had done nothing to comply with the judgment as entered and that an offer of $15,500 was received for the sale of the property. The court was requested to direct the return of the deed deposited with the Prothonotary and asked that defendant purchasers be given a credit of $14,600 toward the judgment ($15,500 less $900 brokers commission incurred on the first sale to defendants).

In answer to this petition, defendants did not deny that plaintiffs had incurred the liability for a $900 commission nor did they dispute that the offer of $15,500 represented the fair market value of the property. Rather, they insisted that the original judgment remain but that such judgment be declared as satisfied by treating the $500 hand money as liquidated damages. The court below opened up the judgment and directed that depositions be taken to determine the value of the property. However, since defendants elected to do nothing, on July 12, 1957, the court below

[ 187 Pa. Super. Page 58]

    granted the prayer of plaintiffs' petition in that it ordered the return of the deed but gave credit to defendants for the full amount of the resale offer of $15,500 rather than $14,600. The final order directed that a ...


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