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GOTHIE ET AL. v. SMYSER. (03/18/59)

March 18, 1959

GOTHIE ET AL., APPELLANTS,
v.
SMYSER.



Appeal, No. 316, Oct. T., 1958, from decree of Court of Common Pleas of Cumberland County, Jan. T., 1957, No. 63, in case of Jack F. Gothie et al. v. William E. Smyser et al. Case remanded.

COUNSEL

Richard W. Cleckner, with him Nissley, Cleckner & Fearan, for appellants.

J. Boyd Landis, with him Landis and McIntosh, for appellees.

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

Author: Woodside

[ 189 Pa. Super. Page 172]

OPINION BY WOODSIDE, J.

This is an appeal from the final decree of the Court of Common Pleas of Cumberland County sitting in equity.

The plaintiffs, Jack F. Gothie and Sarah U. Gothie, his wife, filed a complaint for injunctive relief March 20, 1957, alleging a written agreement between themselves and the defendants, William E. Smyser and Eleanor M. Smyser, his wife, in which the plaintiffs agreed to sell to the defendants certain real estate in Mechanicsburg. The premises included a barroom, and a retail liquor license over which the plaintiffs seemed to have some control was transferred to the defendants from a third party.

The agreement provided for a consideration of $17,250, to be paid in monthly installments of $100 per month for a period of six months and the balance at the rate of$150 per month until the principal amount, together with interest at 6% thereon, was paid. The first $100 payment was due at the execution of the agreement which was dated March 13, 1956. The defendants gave the plaintiffs a demand note in the principal amount of $17,250 as collateral to the sales agreement. The agreement provided for the entire $17,250 to be due and payable upon default, and also provided that the plaintiffs might, after notice, repossess the retail liquor license upon default.

No payment of $100 was made at the time of the execution of the agreement, but six payments of $100 each were made during the six months, from April to

[ 189 Pa. Super. Page 173]

September inclusive, following the agreement. Between September 6, 1 956, and October 12th, defendants requested the plaintiff-husband to reduce the amount of the forthcoming payments from $150 to $100, which Jack Gothie refused to do.

A day or two before October 12, 1 956, defendant William Smyser informed Jack Gothie that he knew a man who would pay $13,000 for the real estate, and asked Gothie if he would consider that offer. Gothie consulted with Mrs. Gothie immediately and then went to William G. Magaro, the purchaser Smyser had mentioned. On October 12th, Gothie and his wife entered into an agreement to sell the real estate to Magaro for $13,000, $1000 to be paid at the signing of the agreement and the balance to be paid on or before October 27, 1956. The defendants signed this agreement. On October 22nd, the plaintiffs and the defendants conveyed the real estate to Magaro and the plaintiffs received the ...


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