Appeals, Nos. 150 and 151, Oct. T., 1959, from decree of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1957, No. 375, in case of James H. Trott et al. v. Charles J. Hild. Decree reversed.
Burton Spear, for appellant.
Herman Moskowitz, for appellees.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 190 Pa. Super. Page 86]
This appeal is from the final decree of the Court of Common Pleas of Philadelphia County arising from an equity suit brought by James H. Trott and Heretta E. Trott, his wife, and by Andrew F. Bernzott and Emma D. Bernzott, his wife, to recover moneys paid by them to appellant, Charles J. Hild, a licensed real estate broker. On October 23, 1957, the Trotts entered into a construction sales agreement with appellant, as agent for McHenry Homes, Inc., for the construction and purchase of a home to be erected on a lot on Worthington Mill Road, Richboro, Pennsylvania, owned by the corporation for a price of $16,900.00. They seek to recover $2,700.00 paid as a deposit. At the time of signing the agreement, appellant had on deposit in his agency account a certain sum as a result of hand money paid under agreement of sale by the purchasers of the existing home owned by Trotts. Trotts authorized appellant to transfer $450.00 of this sum and apply it toward the purchase price of the home to be erected together with the sum of $1,250.00 which they paid to appellant. Subsequently, certain extra work was agreed to between Trotts and McHenry Homes, Inc., in the amount of $2,077.00 of which an additional $100.00 was authorized to be transferred
[ 190 Pa. Super. Page 87]
from the previous agency account and a check in the amount of $900.00 was endorsed in blank. These sums were paid by appellant directly to McHenry Homes, Inc.
On September 25, 1957, Bernzotts entered into a similar agreement for a home to be constructed and sold to them involving another lot owned by the corporation immediately adjacent to the one involving Trotts. The consideration for this transaction was $17,200.00 and the sum of $1,000.00 was paid to appellant as a deposit on account. This sum was also paid to McHenry Homes, Inc., by appellant. On November 26, 1957, McHenry Homes, Inc. was adjudicated a bankrupt, and on January 22, 1958, the trustee in bankruptcy rejected the agreements entered into by the parties here involved. Appellees contended that since the homes were unfinished and no conveyance of title to said lots and incomplete homes were tendered to them, the adjudication in bankruptcy terminated the agreements, entitling them to the return of their respective deposits.
Appellant defended these suits on the ground that appellees directed him to pay over these funds directly to McHenry Homes, Inc.; that the owner-contractor refused to approve the agreements until the deposits were paid over to it; and to be used in the course of construction of said homes, and that, with respect to the extra work, he did not act as agent of McHenry Homes, Inc. Appellees denied these defenses in reply and also raised the Act of 1957, July 9, P.L. 608, section 4, 63 P.S. 440, contending that this Act prohibited the payments as made by appellant and, having made such payments, he thereby became civilly liable therefor.
The court below ruled that the Act of 1957, supra, created civil liability for its ...