Appeal, No. 282, Oct. T., 1959, from judgment of Municipal Court of Philadelphia County, Oct. T., 1957, No. 2328, in case of James E. Kirk et ux. v. Brentwood Manor Homes, Inc. et al. Judgment reversed.
Daniel Marcu, with him Marcu, Marcu and Marcu, for appellants.
Edward E. Dicker, for appellees.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 191 Pa. Super. Page 490]
On June 27, 1956, James E. Kirk and Helen C. Kirk, his wife, filed a complaint in assumpsit against Brentwood Manor Homes, corporate defendant, and Murray G. Isard, individual defendant, to recover the total sum of $3,383.35 on an alleged oral contract. After defendants' preliminary objections were overruled and plaintiffs' motion for judgment on the pleadings was dismissed, the case was tried in the Municipal Court before Judge O'DONNELL without a jury. At the conclusion of plaintiffs' evidence, the trial judge granted defendants' motion for a compulsory non-suit. The court en banc subsequently refused to remove the non-suit, and in effect entered judgment for the defendants. Plaintiffs have appealed.
The record discloses that appellants entered into a written agreement under seal to purchase a dwelling being erected by Brentwood Manor Homes, Inc., hereinafter referred to as Brentwood, for the sum of $25,640.00, and paid a deposit of $2,500.00. Appellants alleged that Murray G. Isard, President of Brentwood, was the real owner, and that Brentwood was merely a straw party. Appellants expended $532.05 for extra work, and paid for the installation of a dishwasher in the sum of $351.00. Appellants subsequently informed Isard that they could not go through with the
[ 191 Pa. Super. Page 491]
settlement and asked that the deposit be returned. Isard suggested that appellants consummate the settlement and resell the dwelling themselves. Appellants then raised the point that this would involve double settlement charges, transfer taxes, and real estate commissions. Isard "agreed to that, said yes, that was true". He further stated, "I don't think we will have any trouble reselling it", and "said they would go ahead and resell it, and he told me that if there were any expenses involved in reselling that property, they would take it out, and they would refund the balance of the money". Appellants offered to prove that the dwelling was thereafter sold to Leopold and Ruth Fuchs for an amount in excess of $25,640.00. The court below was of the opinion that there was no enforceable contract because the arrangement (1) was too vague and indefinite, and (2) lacked consideration.
In reviewing the entry or removal of a compulsory non-suit, the plaintiff must be given the benefit of all the favorable testimony and every reasonable inference of fact arising therefrom and all conflicts therein must be resolved in his favor: Seburn v. Luzerne and Carbon County Motor Transit Co., 394 Pa. 577, 148 A.2d 534. It is also settled law that a non-suit should be entered only in a clear case: Kallman v. Triangle Hotel Co., 357 Pa. 39, 52 A.2d 900; Smith v. Farver, 173 Pa. Superior Ct. 391, 98 A.2d 247. These well established rules were most recently restated in Freund v. Huster, 397 Pa. 652, 156 A.2d 534. Having examined this original record in the light of the foregoing principles, we have concluded that the court below erred in refusing to remove the non-suit.
The parties to an agreement may always rescind or abandon it: Fritz v. Lyons, 185 Pa. Superior Ct. 549, 138 A.2d 182. "It is clearly settled that parties who have undertaken contractual obligations by an ...