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BEULAH M. SCHWOYER v. FREDERICK M. FENSTERMACHER AND JANET L. FENSTERMACHER (12/02/77)

decided: December 2, 1977.

BEULAH M. SCHWOYER, APPELLANT,
v.
FREDERICK M. FENSTERMACHER AND JANET L. FENSTERMACHER, HIS WIFE. FREDERICK M. FENSTERMACHER AND JANET L. FENSTERMACHER, HIS WIFE V. BEULAH M. SCHWOYER, APPELLANT



No. 74 October Term 1976; No. 75 October Term 1976, Appeals from the Decree dated Aug. 18, 1975, of the Court of Common Pleas, Civil Action, Equity, of Berks County at Nos. 3682 and 3692 of 1972.

COUNSEL

John E. Ruth, Reading, for appellant.

David M. Kozloff, Wyomissing, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Price, J., concurs in the result.

Author: Spaeth

[ 251 Pa. Super. Page 245]

Appellant brought an action to rescind an agreement to sell her farm to appellees, on the theory that appellees had failed to perform within the time provided for in the agreement. In response, appellees brought an action against appellant for specific performance of the agreement. The actions were consolidated, and the chancellor decided both in favor of appellees. His findings may be summarized as follows:

An agreement of sale was executed on August 3, 1971. Appellant was represented by R. Joseph Merkel, attorney, and with her knowledge and consent Merkel was retained by appellees to perform services in regard to the sale and purchase of appellant's farm. One provision of the agreement was that "the said SELLER and PURCHASER hereby bind themselves, their heirs, executors, administrators, successors and assigns, for the faithful performance of the above agreement within 120 days from the date of this Agreement, said time to be of the essence of this agreement, unless extended by mutual consent in writing endorsed hereon." Appellees paid appellant a deposit of $3,160 and entered into possession of the farm.

To finance the purchase, appellees found it necessary to obtain a blanket mortgage not only on the farm but also on two other properties, which appellees already owned. For the purposes of this mortgage, title searches were required on all three properties. The parties arranged that the searches should be made by Merkel.

On November 30, 1971, because the title searches had not been completed and the time for settlement was approaching, the parties signed an agreement extending the time for settlement from December 1, 1971, to January 14, 1972. This extension agreement also provided that the parties confirmed and ratified "all other terms and conditions" of the original agreement. When entering into the extension agreement, appellant understood that Merkel would continue to be responsible for the title searches on her farm and on appellees' two properties.

[ 251 Pa. Super. Page 246]

A few days before January 14, 1972, Merkel informed appellees by telephone that the title searches on their two properties were not completed and that therefore settlement would not occur on January 14. Merkel neglected to inform appellant of this. On the evening of January 14, appellant went to Merkel's office for settlement. Appellees were not present. Merkel then informed appellant that as soon as the title searches were completed settlement would take place. Appellant made no objection.

On February 15, Merkel informed appellant that he had one more title search to complete. In late February or early March, appellees talked with appellant about constructing a pond on her farm; appellant said that as the farm would belong to appellees, they could do as they wanted. At about the same time, appellant told appellees that she did not know when settlement would take place.

By March 23 or 24, Merkel had completed all title searches and informed appellees that settlement would take place the following week. On March 27, Merkel telephoned appellant to tell her the same thing. Appellant replied that she was sick and then ended the conversation; on March 24, still interested in making settlement, appellant had consulted another attorney, and on March 27, she mailed Merkel a letter informing him that she was transferring her legal affairs to this new attorney; Merkel received this letter on March 28 or 29. By letter ...


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