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DEMPSEY v. STAUFFER

March 30, 1960

S. Curtis DEMPSEY and Alice E. Dempsey, Plaintiffs,
v.
Charles W. STAUFFER and Violet M. Stauffer, James E. Lawrence and Ruth B. Lawrence, Defendants



The opinion of the court was delivered by: KRAFT

Plaintiffs brought this action to recover damages sustained by reason of their alleged wrongful eviction from premises owned by the defendants, Stauffer and occupied, under a written agreement of sale, by the plaintiffs who operated a diner thereon. Plaintiffs also seek damages for the alleged wrongful conversion by defendants of foodstuffs and inventory in the diner at the time of the eviction.

Jurisdiction is based on diversity of citizenship.

 Defendants Stauffer filed a counterclaim seeking reimbursement for sums expended by them for real estate taxes, water rents and for electricity consumed on the premises during plaintiffs' occupancy, all of which, they allege, were plaintiffs' obligations under the contract. The same defendants also claim actual costs and expenses, including counsel fees, incurred in the defense of this action.

 Defendants Lawrence filed a counterclaim for actual costs and expenses, including counsel fees, incurred in the defense of this action.

 On November 24, 1959, we ordered that the issues of liability be severed from the issues of damages and that the liability issues be first tried. The action was so tried to the Court without a jury. From the evidence produced, we make the following.

 Findings of Fact

 1. Under date of October 9, 1956, plaintiffs and defendants Stauffer entered into a written contract whereby plaintiffs agreed to buy and defendants agreed to sell 823 South Prince Street, Lancaster, Pennsylvania, with the diner building thereon, for the sum of $ 59,000, payable in weekly installments of $ 113.46 each, together with interest at the rate of 5% per annum on the unpaid balance, payable weekly.

 2. The contract further provided, inter alia, that buyer 'shall pay directly to the parties concerned the amount of all taxes levied against the premises, all sewer and water rents due thereon * * * apportioned from October 10, 1956.'

 3. The contract was recorded in the Office for the Recording of Deeds in Lancaster County, Pennsylvania.

 4. Plaintiffs immediately entered into possession of the premises, and operated their diner business thereon without interruption until November 14, 1957.

 5. Tax for the City of Lancaster for 1957 was levied as of January 1. Two per cent rebate was allowed for payment before April 30; net tax was due during May and June; five per cent penalty was added July 1.

 6. Tax for the County of Lancaster for 1957 was levied as of April 1. Two per cent rebate was allowed for payment before June 1; net tax was due during June and July; five per cent penalty was added August 1.

 7. School tax for the School District of Lancaster City for 1957 was levied as of July 1. Two per cent rebate was allowed for payment before September 1; net tax was due during September and October; five per cent penalty was added November 1.

 8. The plaintiffs did not pay any of the taxes levied against the premises for 1957, either during that year or thereafter.

 9. As of November 1957, the water rent for the premises was also in arrears.

 10. The contract of sale contains no express provision making time of the essence of the contract.

 11. Defendant, Charles W. Stauffer, knew, in the early part of August 1957, that plaintiffs had not paid any of the taxes and water rent ...


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