Appeal from decree of Court of Common Pleas of Delaware County, No. 10681 of 1963, in equity, in case of James M. Wilcox, Jr. and Harry C. Yarrow v. Robert D. Regester.
Abraham J. Brem Levy, with him Bernard I. Shovlin and Edmund P. Hannum, for appellant.
John W. Frazier, 3rd, with him Joseph I. Diamond, and Crawford & Frazier, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell concurs in the result. Concurring Opinion by Mr. Justice Cohen.
On March 1, 1963, appellant, Robert Regester, agreed to sell his restaurant liquor license to Two West Avenue Corporation for $12,500. Of this sum, $2,000 was paid directly to appellant and $10,500 was deposited in an escrow account. The agreement of sale was conditioned upon the approval of the transfer of the license by the Pennsylvania Liquor Control Board. Appellant agreed that he would execute all forms required by the board for the purpose of transferring the license. No date was fixed for the consummation of the sale.
Two West Avenue Corporation assigned all of its right, title and interest in this agreement to appellees, James Wilcox and Harry Yarrow. In turn, appellees reassigned the agreement for $20,000 to John Dutton and C. N. Agnew and, later, to Traders Investment Corporation (Traders), the nominee of Dutton and Agnew. The reassignment from appellees to Dutton and Agnew provided that it would become null and
void and that the parties would be relieved of further liability or obligation in the event the Liquor Control Board failed or refused to approve the transfer to Dutton and Agnew or their nominee.*fn1 Appellant had notice of and consented to each of the assignments but he was not informed of the terms of the reassignment to Dutton and Agnew.
In accordance with the agreement of sale, appellant and Traders filed an application with the Liquor Control Board seeking to transfer the license. After processing the application, the Liquor Control Board notified Traders that it would not complete its investigation until appellant and Traders executed a new agreement of sale reflecting the full consideration of $20,000.*fn2 Appellant, now aware of the $20,000 reassignment, refused to enter into such a new agreement unless he received a portion of this increased consideration.
Subsequently, appellant declared that the original agreement of sale had been violated and that, in accordance with that agreement,*fn3 he was retaining the $2,000
payment as liquidated damages. The board then refused to approve the transfer of the liquor license to Traders; Dutton and Agnew notified appellees that ...