Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1971, No. 1817, in case of John Pisiechko v. James Diaddorio.
Natale F. Carabello, Jr., for appellant.
Richard F. Furia, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.
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This appeal is from a judgment on the pleadings in favor of the defendant-appellee in a dispute involving
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an alleged breach of an Agreement of Sale of Real Estate.
On August 12, 1968, the parties herein entered into an Agreement of Sale for the purchase of certain premises located in the City of Philadelphia. As an express condition of the Agreement, the buyer was obligated to secure a Mortgage in the amount of $16,000.00 in partial payment of the purchase price.*fn1 If the buyer could not obtain a Mortgage, the Agreement provided that the Agent for the seller would attempt to do so. The date of settlement was specified as "on or before November 29, 1968."
Prior to settlement, the buyer informed the seller that he had been unsuccessful in his attempts to obtain a Mortgage. Without directing the Agent to secure the Mortgage or to indicate an intention to obtain financing from other sources, the buyer appeared on the date and place of settlement with the full purchase price in hand. Defendant did not appear and five days later, returned the buyer's down payment in the amount of $1,000.00. Buyer accepted and cashed the check in the amount of the down payment.
Three years later, on October 14, 1971, the buyer filed a Complaint in Assumpsit, claiming that he sustained consequential business losses because of the seller's breach of the terms of the Agreement. The seller filed a timely Answer denying a breach on his part and denying any knowledge of the business losses claimed by the buyer. In addition, the seller filed New Matter, endorsed with notice to plead within 20 days, setting forth that:
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"8. Plaintiff failed to comply with all the terms and conditions of the aforesaid agreement and in particular failed to obtain a first mortgage as per the terms of the agreement . . ...