Appeal, No. 174, April T., 1967, from judgment of County Court of Allegheny County, No. 1015 of 1962, in case of Walter L. Crown et ux. v. William R. Cole et ux. Judgment reversed.
Charles R. Wieland, with him Hirsch, Weise & Tillman, for appellants.
Harry N. Sydor, with him Bagley, Sydor & Heck, for appellees.
Before Ervin, P.j., Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (wright, J., absent).
[ 211 Pa. Super. Page 390]
OPINION BY MONTGOMERY, J.
In this action of assumpsit plaintiff-appellees seek the return of $1,500 paid under the terms of a written agreement dated March 22, 1960, entered into with William R. Cole and wife, two of the defendants, and the only appellants, for the purchase of real estate situate in the Borough of Crafton, Allegheny County, Pennsylvania; and in addition, to recover the value of furniture placed on said premises by appellees and, allegedly, wrongfully disposed of by the defendants. The other defendant, G. L. Clemente, trading as the Robin Realty Company, is not an appellant.
Following a non-jury trial a decision was rendered by Honorable BENJAMIN LENCHER, President Judge of the County Court of said county, in favor of the plaintiffs against all the named defendants for $1, 600, representing $1,500 paid on account of the purchase price and $100, the value of the furniture, plus interest. Exceptions to the adjudication and decision having been overruled and judgment in the amount of $2,073 entered on the decision, this appeal by Mr. and Mrs. Cole followed.
The written agreement generally provides for the sale of the property by the appellants to the appellees for the sum of $26,800, payable $1,500 upon the signing of the agreement and the balance in cash upon delivery of the deed; and provides that the initial payment is to be held in escrow by the Robin Realty Company, the broker, who is to be paid his commission by the seller-appellants. However, the complaint, as amended, alleges that the agreement was subject to the sale of property then owned by the purchaser in said Borough of Crafton, which condition the "Defendant Givocchino
[ 211 Pa. Super. Page 391]
L. Clemente,*fn1 trading ... as Robin Realty Company by his agent, ... Robert E. Stack*fn1 ... and the said agent ... of defendants William R. Cole and Ann N. Cole ... did intentionally and without reason omit or eliminate from the said Agreement of Sale ..." The existence of such condition and any fraud in connection with the written agreement was denied by the defendants.
Considering the evidence in the light most favorable to the appellees, the decision winners, and giving them the benefit of all reasonable inferences arising therefrom, we fail to find in this record any evidence to support a finding of fraud on the part of the defendants or their agents as alleged by the appellees. The most that can be said is that prior to the execution of the agreement under consideration Mr. and Mrs. Crown discussed with Mr. Clemente and his salesman Mr. Stack, the possibilities of disposing of the property then owned by them, and being assured they would have no trouble selling it, listed it with them for sale at $17,900, which price was later reduced to $17,000 after the F.H.A. officer had evaluated it. When they signed the written agreement with the appellants they were aware that it was not conditioned on the sale of their property, the broker telling them that this was an agreement between them and the Coles and that he couldn't expect the seller to agree to this ...