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CITIZENS BUILDING AND LOAN ASSOCIATION v. DISE ET AL. (09/16/59)

September 16, 1959

CITIZENS BUILDING AND LOAN ASSOCIATION
v.
DISE ET AL., APPELLANTS.



Appeal, No. 203, Oct. T., 1959, from order of Court of Common Pleas of Montgomery County, June T., 1957, No. 152, in case of Citizens Building and Loan Association v. Howard J. Dise et al. Order affirmed.

COUNSEL

William L. Huganir, for appellants.

Alan J. Swotes, with him Robert H. Malis, and Malis, Malis & Malis, for appellee.

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

Author: Rhodes

[ 190 Pa. Super. Page 429]

OPINION BY RHODES, P.J.

This is an appeal by defendants from an adjudication and order of the Court of Common Pleas of Montgomery County sustaining an exception to a sheriff's schedule of distribution of the proceeds of real estate and awarding a balance of $2,814.93 to exceptant, Frank A. Jaskiewicz.

The following controlling facts are set forth in the findings and adjudication of the court: On June 20, 1957, Ida M. Dise and Howard J. Dise owned a certain

[ 190 Pa. Super. Page 430]

    farm of one hundred twenty acres in Upper Hanover Township, Montgomery County. On July 9, 1957, Howard J. Dise was divorced from Ida M. Dise by a decree of the Court of Common Pleas of Montgomery County. On September 30, 1957, Howard J. Dise entered into a written agreement to sell the farm to Frank A. Jaskiewicz for $25,000. However, on October 2, 1957, the Dise farm was sold at sheriff's sale under a fi. fa. issued by Citizens Building and Loan Association, holder of a mortgage. Jaskiewicz purchased the property at sheriff's sale for $32,500. The sheriff's schedule of distribution showed $2,014.93 (later corrected to $2,814.93) remaining after payment of prior liens payable to the Dises as owners of record. Jaskiewicz filed exceptions to the sheriff's schedule of distribution; he claimed the sum of $2,814.93 under an alleged agreement whereby the Dises were to pay $4,000 as liquidated damages for their failure to carry out the contract of sale at $25,000.

As evidence of this agreement, Jaskiewicz relied on a letter, dated October 25, 1957, signed and sealed by defendants and directing the sheriff to pay the attorney for Jaskiewicz the first $4,000 of the proceeds of the sale after payment of costs and liens of record. Subsequently, in a letter dated November 15, 1957, the Dise attorney attempted to revoke the previous instructions directing payment to Jaskiewicz. Admittedly the effectiveness of this revocation depends upon whether the original direction to the sheriff was given in fulfillment of a legally binding agreement of settlement between the parties.

Depositions of witnesses for the parties were taken at hearings held April 17, 1958, and August 22, 1958. Being of the opinion that all the relevant facts had not been presented, Judge RORREST ordered a further ...


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