No. 801 April Term, 1977, Appeal from the Order in the Court of Common Pleas of Indiana County, Civil Action -- Equity at No. 29, 1975.
Thomas A. Himler, Jr., Latrobe, for appellant.
Ira R. Mazer, Monroeville, for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hester, J., files a dissenting statement. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
[ 266 Pa. Super. Page 349]
The action in the court below was brought by appellant to compel specific performance of a sale of land contract. The court denied specific performance and ordered appellee to return to appellant the down payment plus interest, and reimburse him for the expense of a survey of the land. For the reasons stated herein, we reverse the order of the lower court.
The following facts are pertinent to this appeal. On September 5, 1974, the parties entered into a contract whereby appellee agreed to sell to appellant a tract of land in Conemaugh Township, Indiana County, for a total consideration of $5,000; appellant paid $500 to appellee's real estate agent at that time. At the urging of appellee's attorney, the following provision was included in the agreement:
"The w transaction subject to accurate survey and description of the property under consideration which survey
[ 266 Pa. Super. Page 350]
is to be provided and paid for by the buyer, further, the terms and provisions of this agreement to become effective only upon the buyer's consent to the provision herein contained which consent shall be indicated by the buyer's initial appearing next to the w paragraph."
The above provision was initialed by both parties either contemporaneous with or shortly after the signing of the contract.
On September 20, 1974, appellant had the land surveyed, revealing a total area of 14.64 acres. Appellee claims, however, that he was not aware that the tract was that large, and that he only intended to sell a small triangular portion of approximately four acres.
Appellant tendered the remainder of the $5,000 sale price, which appellee refused to accept, at the closing on September 30, 1974. Thereafter, appellant filed suit on November 12, ...