Appeal from decree of Court of Common Pleas of Delaware County, No. 9182 of 1964, in case of John K. Brown and Helen M. Brown, his wife, v. George Hahn and Katie Hahn, his wife.
Andrew Mutch Knowlton, with him Joseph R. Young, for appellants.
Harry J. Bradley, with him Albert E. Holl, Jr., and Brooks, Oliver, McCartney & Holl, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.
George Hahn and Katie Hahn, his wife (Hahns), owned realty located at 901 and 911 Woodland Avenue, Sharon Hill Borough, Delaware County. On June 29, 1964, they entered into a written agreement, signed by both of them, with Raymond A. McPherson, Inc., a licensed auctioneer, for the sale at auction of their properties.
In pertinent part, this written agreement provided: (1) that the auctioneer was authorized to offer the properties for sale either severally or as an entirety; (2) that the auctioneer list the property for sale on or before July 28, 1964; (3) that the " property shall be sold without limit or reserve "; (4) that "the property shall be sold to the highest bidder at the said sale" and that the auctioneer should act as Hahns' "attorney-in-fact" to make, execute and deliver a contract of sale; (5) that Hahns agreed to give the buyer a deed in accordance with this agreement and the auctioneer's contract of sale.
The auctioneer then scheduled and advertised the sale for July 28, 1964. At sale time the auctioneer circulated another writing, termed "Conditions of Sale",*fn1 which stated, inter alia, that the sale was an absolute*fn2 auction, that Hahns were present "for the purpose of confirming the sale"*fn3 and that Hahns reserved the right to accept the highest bid price, whether as individual parcels or an entirety.
John K. Brown and Helen M. Brown, his wife (Browns), were high bidders at the auction both on the individual parcels and on the entirety. The auctioneer "knocked down" the properties to Browns, Browns tendered the required deposit but Hahns refused the tender and stated that they would not sell to Browns.
Browns then instituted an equity action against Hahns in the Court of Common Pleas of Delaware County seeking specific performance of an alleged contract to sell the properties. Preliminary objections were filed wherein, inter alia, Hahns averred that, inasmuch as the complaint alleged an oral contract for the sale of real estate without alleging a memorandum in writing signed by Hahns, the Statute of Frauds*fn4 barred the action. Later by stipulation, Browns reserved the right to challenge the propriety of raising the Statute of Frauds by preliminary objections under Pa. R.C.P. 1017(b) rather than by way of "New Matter" under Pa. R.C.P. 1030.
The court below dismissed Browns' complaint. The basis for its ruling was two-fold: (a) that the question of the Statute of Frauds was properly raised by preliminary objections; (b) that, when Browns' bid was accepted by the auctioneer, an oral agreement for the purchase of the realty arose but, since the "Conditions of the Sale" were not signed by Hahns, Hahns had the right to withdraw the realty from sale and the oral agreement, by reason of the Statute of Frauds, could not be enforced. The validity of that decree is now before us.
Our first inquiry involves the availability of preliminary objections to raise the Statute of Frauds to this complaint in ...