Appeal, No. 132, Jan. T., 1960, from decree of Court of Common Pleas No. 2 of Philadelphia County, June T., 1959, No. 3373, in equity, in case of Jenkins Towel Service, Inc. v. Fidelity-Philadelphia Trust Company, Trustee et al. Decree reversed.
Samuel Kagle, for appellant.
Thomas M. Thistle, with him Ralph Earle, II, and Smyth, Straub & Thistle, and Morgan, Lewis & Bockius, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Eagen, JJ.
OPINION BY MR. JUSTICE BELL.
Plaintiffs filed a complaint in equity seeking (1) specific performance of an alleged agreement to sell real estate and (2) an injunction restraining the defendants from seeking a change in the zoning to permit the erection of a gasoline station. The lower Court sustained preliminary objections and entered an Order dismissing the amended complaint.
Fidelity-Philadelphia Trust Company owned, as trustee,*fn1 the properties in question. Plaintiff averred in its amended complaint:
"12. Since 1956 the financial condition of the trust of which said real estate was a part, which Fidelity administered, was in acute need of cash and income to carry out the trust purpose, and it was deemed necessary
and practicable to sell said real estate as it did not produce sufficient income.
"13. As a consequence, on March 19, 1956, Fidelity offered said properties at public auction, but the properties were withdrawn because the bids were inadequate.
"14. Since March 1956 said properties were offered on the real estate market and plaintiff, Esso, and other parties separately carried on negotiations, and as a consequence, the sale price was progressively increased.
"15. During April 1959 Fidelity offered said real estate to plaintiff for $85,000.00 and plaintiff's counter-offer of $82,500.00 was declined.
"16. During June 1959 the financial conditions of said trust became so acute and the need of cash to carry out the trust purposes became so great that Fidelity and its co-trustee or trustees whose identity is presently unknown to plaintiff, decided and agreed to abandon further preliminary negotiations with the interested parties and to sell the properties to the party who submitted the highest acceptable cash bid in excess of $92,000.00.
"17. On June 18, 1959, pursuant to said decision to sell, as set forth in the preceding paragraph, defendant Fidelity, in order to give each and every prospective purchaser a fair and equal chance and in order to secure the highest and best price for the owner, asked for sealed bids."
Plaintiff then averred that the Fidelity submitted a written offer to plaintiff and others as per the following letter:
"Jenkins Towel Service, Inc.
"Attention: Mr. James E. Mitchell, ...