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KAUFMAN HOTEL & RESTAURANT COMPANY v. THOMAS. (04/16/63)

April 16, 1963

KAUFMAN HOTEL & RESTAURANT COMPANY, APPELLANT,
v.
THOMAS.



Appeals, Nos. 279 and 282, March T., 1962, from judgments of Court of Common Pleas of Butler County, March T., 1962, No. A.D. 90, in case of Kaufman Hotel & Restaurant Company, Bradford O. Parker and Margaret Parker v. William J. Thomas, Mary Thomas, his wife, William J. Thomas, Jr. and Dolores F. Thomas. Judgments affirmed; reargument refused May 10, 1963.

COUNSEL

Lee C. McCandless, with him Richard L. McCandless, for appellants.

John L. Wilson, with him George P. Kiester, Corwyn M. Coulter, and Kiester, Coulter & Gilchrist, for appellees.

Before Bell, C.j., Musmanno, Jones, Cohen, O'brien and Keim, JJ.

Author: O'brien

[ 411 Pa. Page 88]

OPINION BY MR. JUSTICE O'BRIEN

These appeals arise out of contracts for the sale of all of the stock of the Kaufman Hotel Corporation and for the real estate in which it operates and the subsequent default by the purchasers. The Parkers entered into a contract with the Thomases in November, 1957, for the purchase of all of the stock of the Kaufman Hotel and Restaurant Company, a Pennsylvania Corporation. The other agreement between the Parkers (the purchasers of all of the stock of Kaufman Hotel and Restaurant Company, Inc.) and the Thomases provided that, upon the clearance of the liquor license for transfer to the new purchasers, the land and building wherein the hotel and restaurant carried on its business would be conveyed to the corporation by William J. Thomas and Mary Thomas, his wife, the owners, by the entireties, of the real estate.

Upon default of the terms of the agreement for the purchase of the real estate, the appellees confessed judgment in ejectment under the terms of the agreement and took possession of the property. About a month after this was done, and without any defense to the ejectment proceeding, the appellants brought suit in assumpsit to recover the money paid under the agreement of 1957, seeking, in January, 1962, to recover all payments made under the November, 1957 agreement as well as reimbursement for all improvements and additions made by the appellants during the time they were in possession.

[ 411 Pa. Page 89]

The appellees filed preliminary objections, in the nature of a demurrer, to the appellant's complaint in assumpsit. After argument and opinion filed sur preliminary objections to the complaint, in May, 1962, the preliminary objection, in the nature of a demurrer to the complaint, was sustained and the complaint dismissed. The appellants, in July, 1962, presented a motion for leave to file amended pleadings and attached the proposed amendment to the motion presented. The court refused the motion to file the amended complaint in assumpsit.

These appeals followed, one from the order of court of May, 1962 sustaining the preliminary objections in the nature of demurrer and dismissing the complaint, and the other from the refusal of the court to permit the amended pleadings to be filed.

The pertinent facts and applicable law are well stated in Judge MOOK'S opinion sur preliminary objections, as follows: "Pursuant to this agreement, on the 23rd day of November, 1957, the said William J. Thomas and Mary Thomas, his wife, executed a written agreement for the sale of the aforesaid land to the Kaufman Hotel and Restaurant Company for the sum of $130,000 ...

"The agreement further provided as is usual in most land contracts in Pennsylvania that 'in case of default of payment of any sum of principal or interest, taxes herein agreed to be paid or premiums on insurance herein agreed to be carried, for the space of sixty (60) days after the same shall become due and payable by the terms hereof, that then and in such case, the whole of the said principal sum shall, at the option of the said parties of the first part, forthwith become due and payable, anything herein for contained to the contrary thereof ...


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