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WILLIAMS ET AL. v. STEWART. (03/22/61)

March 22, 1961

WILLIAMS ET AL., APPELLANTS,
v.
STEWART.



Appeal, No. 436, Oct. T., 1960, from judgment of Court of Common Pleas of Cumberland County, Jan. T., 1960, No. 1, in case of Virgil H. Williams et al. v. George H. Stewart. Judgment affirmed.

COUNSEL

John J. McCrea, with him McCrea & McCrea, for appellants.

George S. Black, with him Landis & McIntosh, and Black & Davison, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Montgomery

[ 194 Pa. Super. Page 603]

OPINION BY MONTGOMERY, J.

This is an action in equity to compel specific performance of an oral contract to convey real estate in which plaintiffs have appealed from the order of the court below sustaining defendant's preliminary objection in the nature of a demurrer to the amended complaint.

The complaint alleged that Virgil H. Williams met with the defendant, George H. Stewart, on March 24, 1959, at which time an oral contract was entered into for the sale of two parcels of real estate containing 73 acres, more or less, for the sum of $3,500.00. This land was situate in the Township of Upper Mifflin, Cumberland County. The terms of the alleged agreement

[ 194 Pa. Super. Page 604]

    were not reduced to writing but were distinctly agreed to orally as set forth in the complaint. At the same time, Virgil H. Williams delivered to defendant a check in the amount of $350.00 as down payment and defendant delivered to him two deeds, containing the description for the land, for the purpose of having a new deed prepared. The complaint further alleged that the day after the alleged oral agreement, plaintiffs entered upon the land and made extensive research of said land, including marking of trees to be cut, and interviewed several persons for the purpose of employment in cutting the timber on said tracts. Also, plaintiffs engaged counsel to make title search to the land.

On March 26, 1959, defendant mailed a letter to Virgil H. Williams and received by him in which defendant advised plaintiffs that he would not go through with the sale and also returned the check which had previously been delivered to him.

To these allegations defendant filed preliminary objections, in the nature of a demurrer, stating that the amended complaint did not state a cause of action and contending that the specific performance sought could not be decreed because the alleged contract did not meet the requirements of the Statute of Frauds, 33 P.S. ยง 1. The court below sustained the objection and ordered that the complaint be dismissed unless an amended complaint be filed so as to state a cause of action. No amended complaint having been filed within the time stipulated, a judgment of dismissal was thereupon entered and this appeal followed.

Plaintiffs contend here, as they did in the court below, that the complaint with the attached exhibits, stated a cause of action and that defendant, by demurring to the complaint, made certain admissions in his pleading which satisfy the purpose of ...


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