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FRAZIER v. RUSKIN ET AL. (04/14/64)

April 14, 1964

FRAZIER
v.
RUSKIN ET AL., APPELLANTS.



Appeal, No. 183, Oct. T., 1963, from judgment of County Court of Philadelphia, June T., 1961, No. 2619-D, in case of Charles Frazier v. Dora Ruskin et al. Judgment affirmed.

COUNSEL

Saul Doner, with him Doner & Schaeffer, for appellants.

William Brodsky, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Flood

[ 203 Pa. Super. Page 528]

OPINION BY FLOOD, J.

The defendants have appealed from a refusal of their motions for judgment n.o.v. and new trial following a verdict for the plaintiff.

The defendant Dora Ruskin, on December 29, 1955, executed a lease-sale agreement with the plaintiff and his wife under which they agreed to buy premises at 1444 North Fifty-Eighth Street, Philadelphia, for $8500. The buyers agreed to pay $600 at the signing of the agreement and $85 monthly thereafter on account of principal and interest until $2550 had been paid on account of the purchase price. The seller agreed that when the balance due on the price had been reduced to $5950 she would execute a fee simple deed for the premises, take a purchase money mortgage or secure a mortgage for the buyers for this balance and advise the buyers by written notice that settlement was to take place within ninety days. Upon receiving this notice, the buyers were to make all necessary arrangements for the settlement.

The plaintiff and his wife moved into the premises, made the down payment and monthly payments of $85 from January 5, 1956, to and including February 5, 1959, and a further payment of $45 on February 28,

[ 203 Pa. Super. Page 5291959]

. The plaintiff's wife died on March 26, 1959, after which the left the property and made no more payments. When interest is deducted from the total amount paid to the seller, it appears that he principal remaining due after the payment of February 28, 1959, was less than $5950. Under the agreement, this fixed a duty upon the seller to notify the plaintiff that settlement should take place within ninety days. She never so notified him.

The notation which Mrs. Ruskin or her agent entered in the plaintiff's receipt book charged against his monthly $85 payments not only interest but also certain additional amounts for taxes and insurance. As a result the book showed over $6600, instead of less than $5950, due on principal on February 5, 1959, and at the time when the plaintiff left the premises.

The court made its own calculation and told the jury that this showed that on February 9, 1959, the plaintiff had reduced the outstanding principal below $5950, that if this was correct Dora Ruskin was in default in failing to notify him that settlement should be made within ninety days thereafter, and the plaintiff was not in default when he left the premises. Wheil, in terms, he left to the jury the question of (1) the correctness of his calculation of the amount due, (2) whether Dora Ruskin breached the contract and (3) whether the plaintiff breached the contract, the effect of his charge was to leave little ...


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