Arthur Matusow, Philadelphia, for appellants.
Lewis Katz, Philadelphia, for appellee.
McEwen, Watkins and Montgomery, JJ.
[ 357 Pa. Super. Page 276]
The instant appeal arises from a judgment in favor of the Defendant-Appellee in a suit which alleged the breach of a contract for the construction of a residence by the Appellee for the Plaintiff-Appellants. The dispute centers around the fact that the Appellee used a different color of brick for the exterior of the home than that which had been chosen by the Appellants. The case was tried before the lower court, without a jury, and a verdict was rendered for the
[ 357 Pa. Super. Page 277]
defense. Post-trial exceptions by the Appellants were considered and dismissed, and this appeal was filed after judgment was entered for the Defendant-Appellee.
The sole contention of the Appellants is that the lower court erred in allegedly considering and accepting facts and evidence not agreed to by the parties and not included in an agreed stipulation. The record shows that the parties submitted a written "Stipulation of Facts" to the lower court. This Stipulation, which contained no preamble, stated:
"1. On or about July 25, 1977, plaintiffs and defendant entered into a contract in writing wherein Plaintiffs agreed to purchase and defendant agreed to sell a new dwelling. A copy of the agreement of sale is attached hereto, made a part hereof, and marked Exhibit 'A'.
"2. Settlement was scheduled to take place on or about November 11, 1977.
"3. The agreement provided for an eighteen (18) day extension so that settlement was due no later than November 29, 1977.
"4. The agreement provided that plaintiffs would have the right to select various interior and exterior colors, including the right to select the colors for the siding, shingles, exterior wood and exterior brick.
"5. In accordance with the agreement plaintiffs made the various color selections, and chose dark ketchum, natural mortar, Rake, ...