Jenkins Towel Service, Inc. v. Tidewater Oil Co.

• Decision Date: 27 September 1966
• Citation: 422 Pa. 601,223 A.2d 84
• Parties: JENKINS TOWEL SERVICE, INC., Appellant, v. TIDEWATER OIL COMPANY, a Corporation.
• Court: Pennsylvania Supreme Court

Page 84

223 A.2d 84

422 Pa. 601

JENKINS TOWEL SERVICE, INC., Appellant, v. TIDEWATER OIL COMPANY, a Corporation.

Supreme Court of Pennsylvania.

Sept. 27, 1966.

Samuel Kagle, Oscar Brown, Philadelphia, for appellant.

Frederick L. Fuges, MacCoy, Evans & Lewis, Philadelphia, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

Appellant, Jenkins Towel Service, Inc., was the owner of certain real estate situate at the corner of Eleventh and Vine Streets in the City of Philadelphia. It entered into a purchase option agreement covering this real estate with appellee, Tidewater Oil Company. After one extension of the termination date of the option and a reduction in the purchase price, appellee exercised its option to purchase and the option agreement, in accordance with its terms, thereupon became effective as a contract of sale between the parties.

Among the provisions of the sales contract appeared the following pertinent paragraphs:

'5. Seller agrees that all necessary permits to construct, maintain and operate a gasoline service and filling station together with permits for approaches and curb cuts As required by purchaser have been or will be duly obtained by Seller at Seller's own cost and expense. All such permits shall be in full force and effect at the time of conveyance of title in accordance with the provisions hereof and shall at such time be assigned to purchaser. The contract of sale between Seller and Purchaser, which shall result from the exercise of this option by Purchaser, Shall be contingent upon Seller obtaining all such necessary permits without qualification, except such as may be acceptable to Purchaser. Purchaser may, at Purchaser's option, assist Seller in obtaining such permits but no action on the part of Purchaser shall in any way relieve Seller of Seller's responsibility to obtain such permits. In the event Seller fails to obtain all necessary permits, Purchaser shall have the right, at Purchaser's option, to take such action as Purchaser may deem necessary to obtain such permits and Seller shall execute any and all instruments necessary to assist Purchaser.

'10. Seller agrees that upon any default by Seller in the performance of any of the obligations on the part of Seller to be performed hereunder, or the breach of any of the warranties and representations contained herein, or if the permits referred to hereinabove are not assignable or have not been obtained in Purchaser's name prior to the time of delivery of the deed, then Purchaser shall have the right to terminate this contract of sale and withdraw from the transaction upon written notice to Seller without further liability hereunder.

'11. Should purchaser terminate this contract in accordance with the provisions of Clauses 7 or 10 above, Seller agrees to reimburse Purchaser for the reasonable cost of title search and survey incurred by Purchaser, and Seller shall not be liable for any damages except the cost of title search & survey as stated above.' (Emphasis supplied)

The sales agreement was entered into between the parties on November 29, 1960, and, on or about December 15, 1960, after its engineering and marketing studies of the site had been completed, appellee notified appellant that it required 2-25 ft. curb cuts on Eleventh Street. Late in January of 1961, appellant notified appellee that the only permit that could be secured for the Eleventh Street frontage was for a single curb cut of 30 feet. Sometime later, appellant notified appellee that a permit could be secured for 2--15 ft. curb cuts on Eleventh Street.

Upon the failure of appellant to provide permits in accordance with appellee's requirements, appellee terminated the agreement in accordance with provisions of paragraph 10, supra.

Appellant then entered into an agreement to convey the premises in question to another party for a price $24,000 less than the price stipulated in the agreement with appellee, and filed an action of assumpsit, seeking to recover as damages the $24,000 difference in sales prices. Appellee filed a counter claim, seeking to recover $375 which it had expended for a title examination and survey of the premises, in accordance with the provisions of paragraph 11 of the agreement, supra. The matter was tried non jury and the trial judge made certain findings of fact and conclusions of law and entered a verdict in favor of appellee on both the appellant's claim and on the counterclaim. Appellant's exceptions were overruled and judgment was entered for appellee in the original action and against appellant on the counterclaim. This appeal followed.

'(T)he findings of fact of a trial judge, sitting without a jury, sustained by the court en banc, have the force and effect of a jury's verdict, and, if based on sufficient evidence, will not be disturbed on appeal.' Schofield v. Crossman, 420 Pa. 196, 216 A.2d 455 (1966); Barrist v. John Wanamaker Phila., 419 Pa. 106, 213 A.2d 664 (1965); Penneys v. Pa. Railroad Co., 408 Pa. 276, 183 A.2d 544 (1962).

Among the findings of fact of the trial court, which findings were affirmed by the court en banc, and which our examination of the record reveals to be based on sufficient evidence, were the following:

'Defendant made every effort to accommodate its plans to the reduced curb cut measurements but could not make them conform to its requirements. Defendant, in addition, undertook to secure the permits that it requied without success.

'Defendant repeatedly advised plaintiff that the alternative curb cuts and approaches suggested by plaintiff were not in accordance with defendant's requirements, but did so only after it made a bona fide effort to accommodate its plans to these alternate proposals.

'Defendant's curb cut requirements were reasonable and its refusal to accept the alternates proposed by plaintiff was not made in bad faith, was not capricious and was not motivated...