No. 309 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Washington County, Civil Division, No. 7372, Equity.
John P. Liekar, Canonsburg, for appellants.
Sanford S. Finder, Washington, for appellees.
Spaeth, Hoffman and Van der Voort, JJ. Spaeth, J., files a concurring and dissenting opinion.
[ 279 Pa. Super. Page 510]
Appellants contend that the lower court erred in its determination of the amount of damages to be awarded to appellees for breach of an oral contract to convey land. For the reasons which follow, we modify the order of the court below.
In April of 1977, plaintiffs-appellees entered into an oral contract to purchase a parcel of land in a development known as Western Ranchette from defendant-appellant Elsie Rahon. At that time, plaintiffs believed that the property was owned by Elsie Rahon and her sister. In fact, however, the property was owned by Elsie Rahon and her husband, defendant Edward Rahon, as tenants by the entireties. Plaintiffs then entered into a real estate listing agreement for the sale of their home with Koval Real Estate
[ 279 Pa. Super. Page 511]
Agency. Elsie Rahon signed the agreement as an agent of Koval. The agreement stated that the sale of plaintiffs' home was contingent upon their purchase of the Western Ranchette property. Plaintiffs planned to have a house built on the Western Ranchette property and to move there upon its completion. Subsequently, Elsie Rahon's agency obtained a buyer for plaintiffs' home, and the closing was held on December 2, 1977. Although plaintiffs wanted to have the Western Ranchette closing at that time, Elsie Rahon told them that, for income tax purposes, she preferred to delay the closing until the beginning of 1978. On January 29, 1978, Elsie Rahon mailed an agreement of sale for the Western Ranchette property to plaintiffs. The agreement provided that plaintiffs would pay $2,000.00 before the closing and $10,000.00 upon the delivery of the deed. The agreement named plaintiffs as the buyers and both defendants as the sellers. Defendants, however, did not sign the agreement. On February 17, 1978, plaintiffs mailed Elsie Rahon a $2,000.00 check. Three days later, Elsie Rahon returned the check to plaintiffs by mail and stated in an accompanying letter several reasons why she would not sell the property to them: (1) because she had not heard from plaintiffs after sending the agreement of sale, she assumed that they no longer wanted to buy the property; (2) because plaintiffs' check would not clear the bank until after the closing date of February 20, 1978,*fn1 plaintiffs had failed to comply with the provision in the agreement requiring the $2,000.00 payment to be made before closing; and (3) because plaintiffs did not timely tender the payment, she signed an agreement to sell the property to another buyer.*fn2
On April 21, 1978, plaintiffs filed a complaint in equity seeking specific performance of the agreement to sell the Western Ranchette property and such other relief as the court might deem appropriate. In their answer to the
[ 279 Pa. Super. Page 512]
complaint, defendants raised as new matter the defense of the statute of frauds, stating that no writing or memorandum had been signed by defendants and that the agreement had not been performed in whole or in part. On November 7, 1978, following a hearing, the lower court entered an order denying specific performance on the basis of the statute of frauds and scheduling another hearing to determine whether plaintiffs were entitled to damages.
At the second hearing, defendants conceded that Elsie Rahon had breached the oral contract to sell the Western Ranchette property. Plaintiffs presented evidence that after entering into the oral contract to buy the Western Ranchette property, they paid $35.00 for digging a septic tank on the property and $40.00 to the Cecil Township Board of Supervisors for a septic tank test. Plaintiff Robert B. Weir further testified that he paid a commission of $4,100.00 to Koval Real Estate Agency for the sale of plaintiffs' home. Additionally, he testified that after he and his wife moved out of their home in December of 1977, they rented a cabin for ten months at a monthly rental of $225.00. ...