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ESSNER v. SHOEMAKER. (06/30/58)

June 30, 1958

ESSNER, APPELLANT,
v.
SHOEMAKER.



Appeal, No. 176, Jan. T., 1958, from decree of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1955, No. 4070, in case of Betty Essner v. Ellwood P. Shoemaker et al. Decree affirmed.

COUNSEL

Herbert M. Linsenberg, with him Leon Meltzer, for appellant.

Leonard B. Rosenthal, with him William Benner Farran, Thomas A. Galbally, and Abrahams & Lowenstein, for appellees.

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

Author: Cohen

[ 393 Pa. Page 423]

OPINION BY MR. JUSTICE COHEN

This appeal is from the dismissal of plaintiff's complaint in equity praying for specific performance of an oral contract allegedly made with the defendants, Samuel, Charles L. and Daniel M. Tabas, assigning their interests in certain Philadelphia real estate to plaintiff.

In 1951 the defendants Ellwood P. Shoemaker and his wife entered into a written agreement to sell a 75 acre tract of land located in Philadelphia to the nominee of defendant Elizabeth Stevens, the straw-party for the defendant Tabases. The time of settlement under the agreement was extended by mutual consent until November 16, 1955.

Subsequently, the Tabases entered into an exclusive agency contract with Albert M. Greenfield & Company, a real estate brokerage firm, wherein they authorized Greenfield to execute a written agreement of sale for

[ 393 Pa. Page 424]

    the Philadelphia land for $350,000.*fn1 However, Greenfield failed to produce a prospective purchaser and on February 2, 1955, the Tabases terminated the exclusive agency arrangement and withdrew Greenfield's authority to contract for the sale of the property. They then relisted the tract for sale with Greenfield and other brokers on a non-exclusive basis.

In the summer of 1955 the plaintiff began negotiations with the Tabases for the assignment of their contract for the purchase of the Philadelphia property. These negotiations supposedly culminated on September 8, 1955 when two of the Tabases, their attorney, plaintiff's attorney and representatives of Greenfield met for the purpose of reaching final agreement on the terms of the proposed contract of assignment. Within a week thereafter a draft contract was prepared and initialed by a representative of Greenfield and sent to the plaintiff. Although the plaintiff executed and returned the contract, the agreement was never signed by the Tabases, and in the following month the property was conveyed to them by the Shoemakers under the original agreement of sale.

On October 21, 1955, the plaintiff instituted the present suit in equity alleging that the negotiations on September 8th, 1955 resulted in a binding oral agreement; that the initialed draft contract was a sufficient memorandum thereof to satisfy the requirements of the Statute of Frauds, and that therefore plaintiff was entitled to specific performance. At the conclusion of the evidence taken on the factual issues raised, the chancellor concluded inter alia that plaintiff had failed to establish the existence of an ...


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