Appeal, No. 131, April T., 1960, from decree of Court of Common Pleas of Beaver County, March T., 1958, No. 6, in case of Martin Potoczny v. Stanley Dydek et al. Decree affirmed.
H. Beryl Klein, with him Harold L. Roth, and Roth & Herskovitz, and Klein, Simoni & Morris, for appellants.
James E. Rowley, with him Myron E. Rowley, Ralph E. Smith, and Rowley, Smith & Rowley, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
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We are here concerned with an appeal by Stanley Dydek and his wife, Millie Dydek, from a final decree of the Court of Common Pleas of Beaver County, in equity, dated November 30, 1959. It will be necessary to set forth the factual and procedural situation in considerable detail.
Sometime prior to June 1, 1956, Martin Potoczny and his uncle, Stanley Dydek, negotiated with Ray E. Plunkett for the purchase of a farm of 150.87 acres in Independence Township, Beaver County. During these negotiations, it was agreed between Potoczny and Stanley Dydek that the latter would purchase the northern two-thirds of the farm and Potoczny would purchase the southern one-third, containing approximately 51 acres. On June 1, 1956, Plunkett entered into a written agreement with Potoczny and Stanley Dydek wherein he agreed to sell the entire farm for a consideration of $4,500.00, payable $500.00 down and the balance on delivery of the deed. Of the original down payment, Potoczny paid $150.00 and Stanley Dydek paid $350.00. Both Potoczny and Stanley Dydek were named in the agreement of sale as buyers, but their individual shares were not delineated. Prior to the execution of the written agreement, Potoczny had arranged with his father-in-law to borrow his share of the purchase price.
Following the execution of the agreement of sale, Potoczny went on the southern portion of the farm and,
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with the knowledge of Stanley Dydek, cleared about three acres, and hauled in a quantity of used stone, material and lumber for use in the construction of a dwelling. On or about August 30, 1956, Potoczny and Stanley Dydek, together with Millie Scootis, who is now Millie Dydek, called at the office of Harold E. Craig, Esquire, in Aliquippa, to have the title examined and, stated Potoczny, "to get an understanding between the three of us on the dealings between me and Stanley before they got married". At that time several methods of taking title to the property were discussed. At first, the parties wanted two deeds, one to Potoczny for the southernmost 51 acres, and one to Stanley Dydek for the remainder. However, since no survey had been prepared, Attorney Craig explained that, when the time came for the survey, they might not want the lines to run exactly straight but, rather, to follow the fence lines. After further discussion, it was finally agreed that Potoczny should assign or transfer his rights under the written agreement of June 1, 1956, to Stanley Dydek; that Stanley Dydek was to receive a deed for the entire property in his own name and pay the balance of the consideration and expenses therefor; that, upon receipt by Stanley Dydek of the deed for the entire premises, Potoczny and Stanley Dydek were to have a survey made of the dividing line between Potoczny's southernmost 51 acres and Stanley Dydek's portion of the farm; that, upon completion of the survey, Potoczny was to pay to Stanley Dydek a sum equal to one-third of the consideration, plus costs and expenses, less the $150.00 already paid by Potoczny, payable at not less than $60.00 per month, with interest at 3% per annum; and that, when the full amount was paid to Stanley Dydek, he was to execute and deliver to Potoczny a deed for the southernmost 51 acres of the farm as surveyed. Potoczny never signed, executed or
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delivered any assignment or release of his rights in the ...