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SCHWARTZ v. SCHEEL ET UX. (12/17/59)

December 17, 1959

SCHWARTZ
v.
SCHEEL ET UX., APPELLANTS.



Appeal, No. 102, April T., 1959, from decree of Court of Common Pleas of Beaver County, Sept. T., 1957, No. 7, in equity, in case of George T. Schwartz, Jr. et ux. v. Fred Scheel et ux. Decree affirmed.

COUNSEL

George W. Lucas, with him James B. Ceris, for appellants.

William C. Angel, with him Angel & Kerchner, for appellees.

Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).

Author: Gunther

[ 191 Pa. Super. Page 225]

OPINION BY GUNTHER, J.

This is an action in equity for specific performance. The decree was entered against Fred Scheel and Annie T. Scheel, and in favor of George T. Schwartz, Jr. and Edna R. Schwartz.

The agreement involved herein was dated May 9, 1956 and provided that within sixty days from the date thereof the Scheels would convey to the plaintiffs, "All that certain piece, parcel or lot of land situate in the Township of Economy, County of Beaver and Commonwealth of Pennsylvania, being a tract of approximately 8 1/2 to 9 acres to be finally settled by a survey now underway, roughly bounded and described as follows, to-wit: ..." Then follows a description by metes and bounds. The agreement provided for the payment of $1500.00 down and the balance of $3500.00 upon delivery of the deed making a total consideration of $5000.00.

No down payment was made at the time of the signing of the agreement and no tender was made of the balance of the purchase price.

The survey mentioned in the agreement was to be made at the request and expense of the plaintiffs. The plaintiffs ordered a survey but it was not completed until November, 1956. Two weeks later defendants were notified that the survey had been completed and that the money and the survey were at the office of the lawyer for the plaintiffs. Defendants, however, refused to complete the transaction under the agreement of May 9, 1956.

Plaintiffs introduced as evidence one check for $1500.00, dated April 23, 1956, and another one dated November 15, 1956, for $3500.00, payable to Angel and Kerchner, their attorneys. In addition the surveyor was paid $225.00 by the plaintiffs for his services.

[ 191 Pa. Super. Page 226]

From the above facts, the Chancellor in the lower court concluded as a matter of law that the plaintiffs were ...


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