Appeal, No. 89, Oct. T., 1962, from judgment of County Court of Philadelphia, July T., 1958, No. 784, in case of Joseph Arcuri v. Meyer Weiss. Judgment reversed.*fn*
William A. Goichman, with him Rosenzweig, Krimsky & Goichman, for appellant.
Samuel P. Lavine, with him Steinberg, Steinbrook, Lavine & Gorelick, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 198 Pa. Super. Page 507]
This is an appeal from the judgment of the County Court of Philadelphia on a finding of the trial judge, sitting without a jury, in favor of Meyer Weiss, the defendant-appellee, and against Joseph Arcuri, the plaintiff-appellant, in an assumpsit action for the recovery of a deposit of $500; and from the order of the court below dismissing the plaintiff's exceptions seeking judgment non obstante veredicto.
The facts appear to be that Joseph Arcuri, upon learning that Meyer Weiss had a restaurant for sale, located at 1415 City Line Avenue, Philadelphia, made several visits to the location and met with Meyer Weiss to discuss the purchase of the business, one or more such meetings having taken place late in January or early February, 1958. Then on March 25, 1958 Arcuri, together with his accountant, Paul Grossman, met with Weiss at the restaurant and after some discussion and a brief inspection of the equipment, Grossman made out and gave to Weiss a check payable to him for $500 with the following notation printed on the left side of the check. "Tentative deposit on tentative purchase of 1415 City Line Ave., Phila. Restaurant, Fixtures, Equipment, Goodwill." On April 9, 1958 Arcuri, Grossman, Attorney Martin M. Krimsky and Allen Speiser,
[ 198 Pa. Super. Page 508]
accountant for Weiss, met at the restaurant for further discussion, at which time an inventory was taken which was typed by Speiser and sent to Krimsky on April 11, 1958 with the following paragraph being included in the letter, after the inventory was listed: "The Terms of Sale are, briefly, as follows: Total Sale Price $10,000.00, $2,000.00 Down, the remainder financed by monthly notes with interest at the rate of 6% for three years. There shall be a Grace Period of Fifteen days for the payment of said notes. Under the terms of the Bulk Sales Act, Myer Weiss will assume all liabilities and will transfer the property free and clear of any such debts. Liability List will be furnished to include all known debts as of date of settlement. In event the notes are repaid in full in two years or less from date of sale, the total consideration will be reduced by $850.00: if repaid in Thirty months the total consideration will be reduced by $400.00."
After this date several phone calls were made by Weiss to Arcuri to inquire as to what Arcuri intended to do regarding this transaction and in May, 1958 Attorney Krimsky telephoned Weiss and informed him that Arcuri was no longer interested in purchasing the restaurant and requested Weiss to return the $500. Weiss refused and this suit was instituted to recover the payment of $500 made to Weiss by Grossman on behalf of Arcuri.
On March 5, 1959 the plaintiff-appellant in this case had filed a motion for judgment on the pleadings on the ground that the check cited by the defendant was "not a sufficient written memorandum to take the alleged agreement out of the Statute of Frauds as contained in the Uniform Commercial Code in the section dealding with Sales." On April 29, 1959 Judge PIEKARSKI, of the County Court denied the motion on the ...