Appeal, No. 159, Jan. T., 1961, from order of Superior Court, Oct. T., 1959, No. 441, affirming judgment of Municipal Court of Philadelphia County, Sept. T., 1957, No. 1353, in case of William Falconer v. Samuel Mazess. Order reversed.
Morton B. Wapner, with him Winokur & Kahn, for appellant.
Claude O. Lanciano, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BELL.
Plaintiff brought an action of assumpsit against defendant for the return to him of $1,000 (with interest) which was held by defendant in escrow in accordance with a written agreement made between Falconer and Bair dated August 13, 1953. Defendant counterclaimed for $4,000 for commissions due him by plaintiff in accordance with a separate agreement made between Falconer and Mazess dated August 13, 1953. The lower Court entered judgment for the plaintiff in the sum of $1346.33, and for plaintiff on defendant's counterclaim. The Superior Court in a per curiam three to three decision affirmed the judgment.
Plaintiff had been engaged since 1924 in the trucking business. During the summer of 1953 he received a Cease and Desist Order issued by the Interstate Commerce Commission, which limited his rights. Plaintiff desired to acquire rights to take the place of those he had lost and in order to do so desired to purchase the stock of a corporation which owned the desired rights. William Howard Bair was the owner of all the stock of Marine Forwarding Co., Inc., which had a certificate of public convenience giving it the rights which plaintiff desired.
Plaintiff and his insurance agent met in Philadelphia on August 13, 1953 with defendant, a broker, and one Jacob Polin, an agent of Bair. Plaintiff prepared a contract in the form of a letter addressed to William Howard Bair, Trenton, New Jersey, in which he offered to purchase all of the common stock of the Marine Forwarding Co., Inc., settlement to be made under whichever of two options the seller should elect. The pertinent provisions of the contract are as follows:
"It is a condition of this offer that it be accepted in writing, within five days from the date hereof,*fn* such acceptance to indicate the option under which sale is to be made; and it is a further condition of this offer that final settlement, transfer of stock, etc., shall be consummated not later than August 28, 1953.
"A deposit binder of One Thousand Dollars accompanies this offer, which deposit shall be held by Mr. Samuel Mazess, of 201 N. Broad Street, Philadelphia, until the acceptance or rejection of this offer. Upon acceptance, it shall be paid over to you, and upon rejection it shall be returned to me. Very truly yours, (s) William Falconer."
The following letter of acceptance dated August 17, 1953, and duly stamped, was sent by Polin to plaintiff by United ...