Appeal from order of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1964, No. 4347, in case of Frederick J. Essig and Company v. Central-Penn National Bank of Philadelphia, Joseph Milner, trading as House of Milner, and Harold Abraham, trading as Simpsons.
Robert P. Garbarino, with him Arthur J. Kania, and Crumlish and Kania, for appellant.
George M. Brodhead, with him Arno P. Mowitz, Peter C. Paul, and Mowitz & Kohlhas, and Rawle & Henderson, for appellee.
Charles Polis, with him Polis & Polis, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno.
On November 27, 1963, Paul Dreher of Philadelphia died, leaving a will which appointed the Central-Penn National Bank of Philadelphia executor of his estate. Among the assets of the estate was a quantity of unmounted gems and precious stones which the executor bank announced for sale to the highest bidder. The invitation to bid stated: "In the event that there are two or more top bids rather close to each other, we will inform those bidders of that fact, and give them an opportunity to review their offer and submit sealed bids."
On November 12, 1964, Frederick J. Essig and Company (hereinafter called Essig), bid $65,100. Joseph Milner, trading as House of Milner, and Harold Abraham, trading as Simpsons, and hereinafter referred to as Milner-Simpson, bid $58,000. The bank informed Essig that its bid had been accepted, and notified the other bidders of that acceptance.
Essig at once made payment of the $65,100 and entered into a contract of sale of some of the gems to Fisher and Nelson of New York. Milner-Simpson, however, disputed the acceptance of Essig's bid, contending that since, under the terms announced by the bank, its offer of $58,000 was close to that of $65,100, there should be a rebidding. In pursuance of this contention, Milner-Simpson petitioned the Orphans' Court of Philadelphia County to restrain the bank from consummating the sale of Essig, and on November 19, 1964, the court entered an order rescinding the Essig sale. It also decreed that a second sale of the gems be held on November 30, 1964.
On November 24, 1964, Essig filed a complaint in equity in the court of common pleas, praying that the bank be enjoined from reoffering the gems for sale
since they had already been sold to Essig. The court granted a preliminary injunction but on November 30th, after Milner-Simpson had intervened, dissolved it, and discharged the rule to make it permanent. Essig appealed to this Court from the action of the common pleas court, this being the appeal presently under consideration.
While the proceedings in the court of common pleas were pending, the rebidding ordered by the orphans' court took place on November 30th and Essig, under protest, submitted a second bid, this time in the amount of $80,500. Milner-Simpson bid $85,665 and demanded delivery of the gems. The executor bank refused delivery pending disposition of the appeal by Essig to this Court. Milner-Simpson then petitioned the orphans' court for a citation to show cause why the sale to them under ...