Appeal, No. 343, Oct. T., 1959, from judgment of Municipal Court of Philadelphia County, Nov. T., 1956, No. 791, in case of Albert Tieri et al. v. Roy W. Orbell. Judgment affirmed.
Robert A. Webster, with him Henry A. Frye, and Moffett, Frye & Leopold, for appellants.
John E. Power, Jr., for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 192 Pa. Super. Page 613]
This is an appeal from the refusal of the Municipal Court of Philadelphia to grant motions for a new trial and judgment non obstante veredicto, and entering judgment for the plaintiff-appellee, in an action in assumpsit for the return of deposit money paid on account of the purchase of certain real estate in Philadelphia, Pennsylvania.
[ 192 Pa. Super. Page 614]
The appellants, Charles G. Kazanjian and Elizabeth M. Kazanjian, were the owners of premises situate at 101 South 63rd Street, Philadelphia, Pennsylvania, and they employed the defendant, Roy W. Orbell, a real estate broker, to effect the sale of the premises. The plaintiff-appellee, Albert Tieri, became interested in the property and employed J. P. Cunningham, another real estate broker, to represent him.
Cunningham, acting through an employe, named Barney Cohen, arranged with Orbell to act as cooperating brokers and an agreement of sale, dated August 10, 1955, reciting that J. P. Cunningham and City Suburban Realty Company, which was Orbell, as agents for the owners, agreed to sell the premises to Tieri for Twenty-four Thousand ($24,000) Dollars. The agreement contained a provision that "This agreement is conditioned upon purchaser's ability to obtain financing for the sum of $16,000.00." The agreement was executed by Cunningham and Orbell, as agents for the appellants-owners and by Tieri, as the purchaser. The agreement was subsequently approved by the Kazanjians. The agreement provided that settlement was to be made on or before November 1, 1955, but the date was later extended to January 15, 1956. The down money, amounting to $5300 was paid into the possession of Orbell.
The action in assumpsit was originally instituted in the Court of Common Pleas No. 5 of Philadelphia County, for the return of the down money. The defendant Orbell filed a petition for interpleader, which was granted, and Charles G. Kazanjian and Elizabeth M. Kazanjian, were interpleaded as claimants. The case was then transferred to the Municipal Court and tried before President Judge BONNELLY of the Court below, without a jury. A verdict was entered for the plaintiff in the amount of $2300. Motions in arrest of
[ 192 Pa. Super. Page 615]
judgment and for judgment n.o.v. were made on behalf of the defendant and the claimants, which were denied and judgment entered on the ...