Appeal from decree of Court of Common Pleas of Montgomery County, No. 70-9543, in case of Robert F. Felte, Inc. v. Frank White and Minerva White, and Global Franchise Corporation.
Ronald N. Rutenberg, with him Rutenberg, Rutenberg, Rutenberg and Rutenberg, for appellant.
Donald A. Semisch, with him Semisch and DerMovsesian, for appellees.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Nix dissents.
This controversy arises out of a written contract of sale for a parcel of realty located in Abington, Pennsylvania, between Frank and Minerva White (sellers) and Global Franchise Corporation (buyer). Appellant, Global, is appealing from the decree of the Court of Common Pleas of Montgomery County, awarding $9,000, less counsel fees and costs, to appellees, Frank and Minerva White. The $9,000 represents the funds deposited with Robert F. Felte, Inc., an escrow agent, who originated this action by a complaint in equity*fn*
requesting interpleader to determine whether the buyer or seller is entitled to the escrow. On this appeal appellant-buyer contends that the chancellor erred in awarding this sum to the sellers. Upon careful review of the record we agree with appellant and accordingly reverse.
A brief recital of the facts, as found by the chancellor, leading to the interpleader action is necessary to understand the principal issue. On November 29, 1969, the Whites and Global entered into a written agreement of sale for the purchase of property owned by the Whites. The purchase price was $90,000 with a down payment of $9,000 to be paid into an escrow account. Robert F. Felte, Inc., the agent for the sellers, was designated by both parties to be the escrow agent.
The contract of sale contained several conditions relevant to the resolution of this dispute:
"(a) that settlement was to be made on February 15, 1970; that payment in accordance with the contract should be made on that date; and, that time was of the essence;
"(b) that if the buyer defaulted in performing the conditions of the contract or failed to make settlement in accordance with the terms thereof, the sellers had the option of retaining the sum paid into escrow, on account of the purchase price, or of retaining it as liquidated damages for the damages and expenses to which the sellers would be put; and, in the case of the latter, the contract should be null and void;
"(c) that if the mortgage commitment were not obtained by the date of settlement, such date would be extended after said commitment was obtained;
"(d) in the event the agreement were contingent upon securing a mortgage by or ...