Appeal from judgment of Court of Common Pleas No. 3 of Philadelphia County, June T., 1962, No. 4154, in case of Jenkins Towel Service, Inc. v. Tidewater Oil Company.
Samuel Kagle, with him Oscar Brown, for appellant.
Frederick L. Fuges, with him MacCoy, Evans & Lewis, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts dissents. Concurring Opinion by Mr. Justice Cohen. Mr. Justice Jones joins in this concurring opinion.
Appellant, Jenkins Towel Service, Inc., was the owner of certain real estate situate at the corner of Eleventh and Vine Streets in the City of Philadelphia. It entered into a purchase option agreement covering this real estate with appellee, Tidewater Oil Company. After one extension of the termination date of the option and a reduction in the purchase price, appellee exercised its option to purchase and the option agreement, in accordance with its terms, thereupon became effective as a contract of sale between the parties.
Among the provisions of the sales contract appeared the following pertinent paragraphs: "5. Seller agrees that all necessary permits to construct, maintain, and operate a gasoline service and filling station together with permits for approaches and curb cuts as required Page 603} by purchaser have been or will be duly obtained by Seller at Seller's own cost and expense. All such permits shall be in full force and effect at the time of conveyance of title in accordance with the provisions hereof and shall at such time be assigned to purchaser. The contract of sale between Seller and Purchaser, which shall result from the exercise of this option by Purchaser, shall be contingent upon Seller obtaining all such necessary permits without qualification, except such as may be acceptable to Purchaser. Purchaser may, at Purchaser's option, assist Seller in obtaining such permits but no action on the part of Purchaser shall in any way relieve Seller of Seller's responsibility to obtain such permits. In the event Seller fails to obtain all necessary permits, Purchaser shall have the right, at Purchaser's option, to take such action as Purchaser may deem necessary to obtain such permits and Seller shall execute any and all instruments necessary to assist Purchaser.
"10. Seller agrees that upon any default by Seller in the performance of any of the obligations on the part of Seller to be performed hereunder, or the breach of any of the warranties and representations contained herein, or if the permits referred to hereinabove are not assignable or have not been obtained in Purchaser's name prior to the time of delivery of the deed, then Purchaser shall have the right to terminate this contract of sale and withdraw from the transaction upon written notice to Seller without further liability hereunder.
"11. Should purchaser terminate this contract in accordance with the provisions of Clauses 7 or 10 above, Seller agrees to reimburse Purchaser for the reasonable cost of title search and survey incurred by Purchaser, and Seller shall not be liable for any damages except the cost of title search & survey as stated above." (Emphasis supplied)
The sales agreement was entered into between the parties on November 29, 1960, and, on or about December 15, 1960, after its engineering and marketing studies of the site had been completed, appellee notified appellant that it required 2-25ft. curb cuts on Eleventh Street. Late in January of 1961, appellant notified appellee that the only permit that could be secured for the Eleventh Street frontage was for a single curb cut of 30 feet. Sometime later, appellant notified appellee that a permit could be secured for 2-15ft. curb cuts on Eleventh Street.
Upon the failure of appellant to provide permits in accordance with appellee's requirements, appellee terminated the agreement in accordance ...