NO. 2024 OCTOBER TERM, 1976, Appeal from the Order of the Court of Common Pleas, Civil Division, Law, of Chester County, at No. 246 May Term, 1972.
Robert J. Shenkin, West Chester, for appellant.
No appearance entered nor brief submitted for appellee, Hill.
James E. McErlane, West Chester, submitted a brief for appellee, Highley.
Richard F. Smith, West Chester, with him William H. Lamb, West Chester, for appellee, Kalemjian.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurs in the result.
[ 250 Pa. Super. Page 362]
Plaintiff, International Dairy Queen, Inc. (hereinafter referred to as Dairy Queen) filed a suit in trespass and conversion against defendants, William Hill, George Highley and Edwin Kalemjian, alleging that they converted certain equipment belonging to the plaintiff to their own use. The case proceeded before a judge and jury to a trial wherein the plaintiff presented its evidence. Following the presentation of the plaintiff's evidence and upon a motion by the defendants, the trial court granted a non-suit as to defendants Highley and Kalemjian. The jury returned a verdict in favor of the plaintiff and against defendant Hill. After the trial, the plaintiff filed motions with the lower court to take off the compulsory non-suit entered against defendants Highley and Kalemjian. Those motions were denied and plaintiff has appealed to this Court.
Briefly stated, the facts are as follows. Defendant Highley was a one-third owner of a tract of land located in East Whiteland Township, Chester County, Pennsylvania. The other owner was a Ms. Willits who held the remaining
[ 250 Pa. Super. Page 363]
two-thirds interest in the land. Ms. Willits was not named as a defendant in this case. On November 11, 1969, defendant Hill entered into an agreement with defendant Highley and Ms. Willits to purchase the above referred to tract of land. The agreement called for settlement within six months. On April 9, 1970, defendant Highley signed a document entitled "Consent to Installation -- Realty Owner's And Mortgagee's Waiver." This document purported to be an agreement by Highley to consider all tangible personal property described in a conditional sales contract and affixed to the property as personal property notwithstanding the manner in which it was affixed to the tract of land. Furthermore, title to the personal property was to remain in the seller of the personal property until all amounts due under the conditional sales contract had been paid to the seller. This document was executed by Highley in anticipation of an agreement to be entered into between the American Dairy Queen Corporation and defendant Hill whereby Hill would purchase certain equipment necessary to operate a Dairy Queen store on the premises being sold to him by Highley. On October 30, 1970, Hill and the American Dairy Queen Corporation entered into the agreement for the purchase of that equipment which had a total value of approximately $20,000. However, Hill defaulted on the agreement because he was unable to meet the payments due the plaintiff, International Dairy Queen, Inc., the assignee of the American Dairy Queen Corporation. Hill was also unable to complete the purchase of the tract of land from Highley and Ms. Willits and the land was sold to the defendant Kalemjian and his son by a deed executed August 14, 1971. At the time Highley signed the mortgagee's waiver agreement, the sales contract had not been entered into by Dairy Queen and Hill, so certain parts of the waiver document were incomplete. The incompleted portion of the document included the absence of the date of the conditional sales contract and the docket entry in the clerk's office.
The equipment was installed on the premises by the appellant pursuant to the sales ...