Appeal, No. 360, Oct. T., 1959, from judgment of Court of Common Pleas of Montgomery County, April T., 1956, No. 408, in case of George M. Laughlin et al. v. Baltalden, Inc. Judgment affirmed.
F. D. Duden, Jr., with him Arthur Lefkoe and James D. McCrudden, for appellants.
Nicholas H. Larzelere, with him Duryea & Larzelere, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 191 Pa. Super. Page 613]
This is an appeal from the refusal of a motion for a new trial. Appellants, George M. Laughlin and Grace S. Laughlin filed an assumpsit action against appellee, Baltalden, Inc., a Pennsylvania corporation engaged in the building and selling of homes. The action sought the return of hand money in the amount of $1,900.00 paid pursuant to an agreement of sale with appellee for the purchase of a lot and house and reimbursement for $650.00 expended for painting the home. Originally, appellants agreed to purchase Lot No. 12 on Haverford Road, Ardmore, Pennsylvania, for the sum of $20,450.00, but this agreement was subsequently changed to cover Lot No. 13. The consideration for the sale and construction of a new home on this site was $21,800.00. The agreement provided that the
[ 191 Pa. Super. Page 614]
house to be built on the lot would be "substantially similar" to a nearby sample house. The sales agreement provided that in the event the purchasers failed to make settlement, the seller could retain the money paid on account as liquidated damages.
When the time for settlement arrived, appellants refused to make settlement and take title because, they claimed, the house built for them was not substantially similar to the sample house. The sample house was so graded that only one step was necessary from the kitchen to the ground to the rear, and the stone used in construction was all of one type or color. The home actually constructed had six wooden steps leading from the kitchen to the ground, and the stone used consisted of two different types of stone and color.
The issue whether the house was substantially similar to the sample house shown to appellants was submitted to the jury. The evidence disclosed that at the time the agreement was entered into, the lot in question had a much greater drop in elevation to the rear of the lot in question from that of the sample house. At the time the lot in question was selected, a part of the stone work was already installed. Appellants stated that they desired a different type of stone and appellee stated that this could be worked out so that the stone work, when completed, would look all right. The property was graded but, because of the difference in elevation between the lot in which the sample house was constructed and the lot of the house in question, additional steps were required leading from the kitchen to the ground. The jury, weighing all of the conflicting evidence, returned a verdict in favor of the appellee.
A motion for a new trial was filed, alleging that the verdict was against the evidence, the weight of the evidence and against the ...