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DURYEA v. LONG ET UX. (03/24/60)

March 24, 1960

DURYEA
v.
LONG ET UX., APPELLANTS.



Appeal, No. 457, Oct. T., 1959, from order of Court of Common Pleas of Chester County, July T., 1958, No. 167, in case of Justin G. Duryea et al. v. Melvin C. Long et ux. Order affirmed.

COUNSEL

Robert W. Lentz, with him G. Clinton Fogwell, Jr., and Reilly and Fogwell, for appellants.

Nicholas H. Larzelere, with him John O. Platt, Jr., for appellees.

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

Author: Gunther

[ 191 Pa. Super. Page 512]

OPINION BY GUNTHER, J.

This appeal is from the refusal of the court below to open judgment entered by confession. The petition to open was filed by Melvin C. Long, one of the appellants, and upon depositions and argument thereon, the petition and the rule issued thereon were dismissed.

On November 15, 1957, Justin G. Duryea and Catharina W. Duryea, appellees, purchased certain premises situate in Tredyffrin Township, Chester County, from Elf Estates, Inc. On the same date, appellants and appellees entered into a month to month lease for the premises at a monthly rental of $350.00.

[ 191 Pa. Super. Page 513]

Appellants paid only one month's rent although in possession during all the time in controversy, and in July, 1958, appellees entered an amicable action in ejectment and for damages in the sum of $3,850.00. This rent claim was never disputed by appellants.

On October 28, 1958, appellees entered into an agreement of sale for the premises with one Gordon Miller. The sale price agreed upon was $55,000.00 and the sum of $2,750.00 was deposited as hand money. This agreement provided that time was of the essence in the closing of the transaction. The agreement also provided that appellees would agree to accept the sum of $2,000.00 as full settlement of the rent due and owing by appellants to appellees through December 26, 1958. This sum, however, was included in the total consideration of $55,000.00.

Three extensions of the settlement date were made, each for a period of a month, and with each extension, appellants paid appellees $350.00 for rent. However, settlement for the sale of the property was never consummated and the balance due on the purchase price was never paid. Appellees proceeded to collect the entire amount of the original judgment confessed to be due at which time appellants moved to open the judgment, alleging that the sales agreement of October 28, 1958 between appellees and Miller constituted an accord and satisfaction of the rent claim then due.

The sole question raised on this appeal is whether the sales agreement entered into between Miller and appellees operated as an accord and satisfaction insofar as the liability of appellants are concerned for rent in the amount of $3,850.00. Appellants contend that when appellees obtained a new consideration from Miller for the purchase of the property and agreed to limit the claim for rent to $2,000.00, which was ...


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