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ELFANT v. CLAUSS. (01/16/62)

January 16, 1962

ELFANT, APPELLANT,
v.
CLAUSS.



Appeal, No. 110, Oct. T., 1961, from decree of Court of Common Pleas of Montgomery County, Sept. T., 1958, No. 1, in equity, in case of Martin M. Elfant v. Thomas F. Clauss et al. Decree affirmed.

COUNSEL

Irwin S. Lasky, for appellant.

Jerome B. Apfel, with him Henry J. Morgan, and Blank, Rudenko, Klaus & Rome, for appellees.

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

Author: Watkins

[ 197 Pa. Super. Page 202]

OPINION BY WATKINS, J.

This is an appeal from a decree in equity of the Court of Common Pleas of Montgomery County, dismissing the complaint of Martin M. Elfant, the plaintiff-appellant, for the rescission of an agreement and the return of purchase money.

In November, 1958, Martin M. Elfant, the plaintiff, filed a complaint in equity seeking specific performance with a partial price abatement under an agreement of sale for the purchase of a new house, located in Huntingdon Valley, Montgomery County, Pennsylvania. It appeared at the trial of the case before Judge GROSHENS, sitting as Chancellor, that one, Michael J. Goll, a named defendant, was an innocent purchaser for value so that it was agreed by counsel for the parties that the question to be decided was one of rescission and return of purchase money under the agreement of sale. The Chancellor found for the defendants

[ 197 Pa. Super. Page 203]

    and the court en banc overruled the plaintiff's exceptions to the decree nisi that it was against the weight of the evidence and the law and entered a final decree dismissing the complaint.

The facts were found as follows: "1. Plaintiff and defendants entered into an agreement of sale for the purchase of premises 526 Susquehanna Road, Huntingdon Valley, Pennsylvania, on March 11, 1958. 2. Plaintiff, Martin M. Elfant, is a real estate broker with thirteen years of experience in the real estate business, including experience in Abington Township and elsewhere in Montgomery County. 3. In January or February 1958, plaintiff inspected the premises 526 Susquehanna Road with a view towards purchasing said premises from defendants. 4. At the time of said inspection the property was known as Lot No. 34 and was included on a subdivision plan of Section VII, Woodridge Farms, which contained the exact dimensions of said property, and which had been duly recorded on January 15, 1957, in the office of the Recorder of Deeds of Montgomery County, Plan Book B-3, page 60. 5. At the time of said inspection, a copy of the subdivision plan showing the dimensions of said property, was displayed in a plainly visible manner in the kitchen of a sample house, about two blocks away on the same tract. 6. Plaintiff had been in that sample house prior to signing the agreement for the property in question, and at the time the plaintiff began negotiating the property, he knew that the lot in question was part of a larger tract. 7. At said time, plaintiff knew that there was a plot plan covering the premises in question and that the property in question was known as Lot No. 34 on such plot plan. 8. The plaintiff prepared the agreement of sale March 11, 1958 for the premises in question, which agreement of sale stated the size of the lot to be 104 feet by 140 feet. 9. The lot in question is on a curve which was plainly apparent

[ 197 Pa. Super. Page 204]

    to the plaintiff at the time he saw the property on January, 1958. The frontage of the property is actually 78 feet on a straight line, and 26 feet on the curve or arc. 10. The lot in question was seeded and graded at the time plaintiff signed the agreement of sale, and was the only one that had seeded grass. The adjoining lots were not seeded and graded, and the boundaries of the lot in question were clearly definable because of its seeded and graded condition. 11. At the time plaintiff signed the agreement of sale, there was a swale or gutter along the boundary line on each side of the lot in question, clearly outlining of the boundaries of the lot. 12. At least as early as April, 1958, plaintiff observed an excavation in the area where they now contend their boundary line was represented to have been located. They were told at that the excavation was for a swimming pool and was on the adjoining lot. 13. In April 1958, plaintiff received from the Frankford Trust Company the title certificate for the lot in question, which contained a full description of the dimensions of the lot, by feet and inches, and the plaintiff had a deed for the property prepared in his office, on his form, which deed contained a full description of the property taken from the certificate. 14. Plaintiff made no complaint about the size of the lot until May 8, 1958 at the Frankford Trust Company, the time and place fixed for settlement. 15. Plaintiff refused to make settlement for the property on May 8, and the defendants rescheduled the settlement for May 14, 1958 and notified the plaintiff, but ...


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