Appeal, No. 48, Oct. T., 1963, from judgment of County Court of Philadelphia, Dec. T., 1959, No. 5679D, in case of Louis Blumberg v. John DiMarco et al. Judgment affirmed.
Thomas S. Howland, with him Howland & Hess, for appellants.
Merton J. Matz, with him Zoob, Cohan & Matz, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 201 Pa. Super. Page 593]
This is an appeal from a judgment for the plaintiff in a suit to recover a down payment of $5,000 in connection with the execution of an agreement for the sale of real estate containing an express warranty by the sellers "that the entire tract of land being conveyed under this Agreement of Sale is zoned 'C' Residential and that there are no existing Deed Restrictions which may prohibit or limit the uses permitted under the
[ 201 Pa. Super. Page 594]
aforementioned 'C' Residential Zoning Classification." In fact there was a building restriction of record to the effect that "no building shall ever be erected within sixteen feet of any street or avenue upon which the said lot shall frt." "C" zoning required a set-back of only eight feet.
The defendant argues that this was a restriction merely as to use and not area. Since there was no use allowed in "C" residential area that was prohibited by the restriction, he argues there was no breach of the warranty which protected only against restrictions limiting uses permitted by "C" zoning.
The court below held that since no building whatever was permitted within the eight foot strip the warranty was breached; that this was a warranty of existing fact and therefore there was a breach by the defendants simultaneously with the execution of the agreement and plaintiff had the right to refuse to proceed further by paying the second $5,000 called for by the agreement; and that it is no defence that he failed to give the defendants the opportunity to see whether they could convey free and clear of the restriction. The court below has written a clear and accurate opinion which we fully approve and we need add very little to what was there said.
The appellants contend that even if the plaintiff was restricted from building within sixteen feet of the front lines of the property he has not established that he could not utilize the tract to full advantage and still comply with both the use and area restrictions of "C" residential zoning requirements. They argue that hundreds of "C" residential dwellings have set-backs of more than the eight feet required by the ordinance; and that the ordinance does not mean that the set-back line shall ...