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SHARP v. MCKELVEY (09/12/61)

September 12, 1961

SHARP
v.
MCKELVEY, APPELLANT.



Appeal, No. 169, Oct. T., 1961, from judgment of Court of Common Pleas of Lancaster County, July T., 1959, No. 2, in case of Hugh R. Sharp, Jr. v. Thomas McKelvey. Judgment affirmed.

COUNSEL

Henry F. Gingrich, for appellant.

John C. Pittenger, with him Paul A. Mueller, Jr., and Barley, Snyder, Cooper & Mueller, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Wright

[ 196 Pa. Super. Page 139]

OPINION BY WRIGHT, J.

We are here concerned with an assumpsit action arising out of negotiations involving the purchase of a horse. After the filing of a complaint, an answer with counterclaim, and a reply, the matter was referred to arbitrators who found for the defendant (one arbitrator dissenting) and awarded him $180.00 on the counterclaim. Upon appeal to the court of common pleas the case was tried without a jury. The hearing judge rendered a verdict for the plaintiff in the sum of $1,020.00. Exceptions filed by the defendant were dismissed by the court en banc, and entry of judgment was directed in accordance with the verdict. The defendant has appealed.

In September, 1957, Hugh R. Sharp, Jr. of Wilmington, Delaware, was interested in securing a horse for his daughter. He obtained a horse from Thomas McKelvey, a farmer and horseman in Lancaster County, Pennsylvania, for which horse Sharp was to pay $2,000.00. After a trial period, which was longer than customary because of plaintiff's contention that the horse was not in good condition when it was obtained, Sharp attempted to return the horse to McKelvey. On September 16, 1957, the parties entered into an agreement with reference to the horse consisting of the following letter from Sharp and acceptance thereof by McKelvey:

"Mr. Thomas McKelvey, R.D. 1 Oxford Pennsylvania Dear Mr. McKelvey: In regard to the horse, which my daughter Donnan Sharp has had on trial from you for several months, and following up our correspondence in the matter and our telephone call of the evening of December 14th, I would like to outline the

[ 196 Pa. Super. Page 140]

    following agreement, which I think is in accordance with our verbal understanding on the telephone:

"I will purchase the horse in question from you for $1,500 and return it to you for whatever treatment it requires to bring the horse back to sound condition. For this purpose I will pay board on the horse at the rate of $40.00 a month until the horse is cured or until the end of April, whatever occurs first. In other words, I will not be responsible for board after the end of April. As soon as the horse is sound, you will use your best efforts to sell it for whatever price you consider proper, provided this price is over $1,200.00. From the sale price you will return to me $1,500.00 and you are to keep any money you are able to get over and above that price. Should the horse not be sold by the 30th of June you will buy the horse from me for $1,200.00. In other words, if you have sold the horse prior to the 30th of June I will get a minimum of $1,200 and a maximum of $1,500.00 if you have sold him above that of June, you buy him from me for $1,200.00. amount. If you not sold the horse before the end

"If this agreement is in accord with your understanding of our verbal agreement of last Saturday night, would you be kind enough to sign the enclosed copy of this letter and return it to ...


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