L. E. Wallach, Inc. v. Toll
| Decision Date | 18 April 1955 |
| Citation | 113 A.2d 258,381 Pa. 423 |
| Parties | L. E. WALLACH, Inc., Appellant, v. Joseph TOLL, Edward J. Boyle, Edith D. Tobin and Donnelly & Suess, Inc. |
| Court | Pennsylvania Supreme Court |
Albert B. Soffian, Maurice S.Levy, Philadelphia, Leon H. Fox, Norristown, for appellant.
Wisler, Pearlstine, Talone & Gerber, Raymond Pearlstine, Thomas M. Garrity, Norristown, David Kanner, Edward J. Swotes, Philadephia, for appellee.
Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO, and ARNOLD, JJ.
The controlling facts in this case are not in dispute and tell their own story. They concern the rights of the corporate lessee under a clause of the lease granting it a certain option privilege to purchase the demised premises.
The lease was dated Novmber 13, 1951. It demised the one-story store property situate at No. 6 East Lancaster Avenue, Ardmore, to be used for the sale of shoes, accessories and surgical appliances, for the term of 10 years beginning May 1, 1952, at a rental of $425 a month. It contained the following provision: 'Lessee has first option to buy property at price offered by purchaser, but must agree within one week whether or not he will meet offer.'
On January 31, 1952, which was before the lessee entered into possession, the agents of the lessors wrote to its Secretary and Treasurer, Louis E. Wallach, a letter in which they stated that 'In accordance with the terms of the lease which you signed on November 13, 1951 for the store at No. 6 East Lancaster Ave., Ardmore, Pa. we are writing to advise you we have an offer of $105,000.00 cash for the sale of premises No. 6-8-10 E. Lancaster Avenue, Ardmore, Pa. and if you desire to exercise your option to purchase same, you will have to notify us in writing not later than February 8th, 1952, otherwise the properties will be sold without further notice to you.'
The following day Wallach wrote to the agents as follows:
On February 4 the agents wrote: 'In reply to your letter of February 1st, 1952, the sale price on your building along, [sic] No. 6 E. Lancaster Ave., Ardmore, Pa. will be $52,500.00 cash.'
On February 23, Toll and his wife as real owners, and Edward J. Boyle as the straw holder of the title, entered into a written agreement with Edith D. Tobin for the sale to her of the properties Nos. 6-8-10 E. Lancaster Avenue, for the price of $110,550 of which $5,000 was to be paid in cash upon the execution of the agreement; the buyer was to take title subject to a mortgage of $65,000 to be created by the sellers before settlement and the balance of the purchase money $40,550 was to be paid in cash at the time of settlement. On May 16 sellers placed a mortgage of $60,000 on the properties and settlement with the purchaser was made on August 1. It is admitted that Edith Tobin purchased the premises with knowledge of the existence of the lease and the terms of the option contained therein. Meanwhile, on July 24, counsel for the purchaser wrote to the lessee that his client, Edith Tobin, was to take title to the premises on August 1st, and that, beginning with that date, all rents were to be payable to him. Wallach, on July 28, replied to this letter calling attention to the option which he had in his lease and stating that he was consulting his lawyer as to what action he could take to protect his rights. On October 24 the Wallach Company filed a complaint in equity praying that the deed to Edith Tobin for the premises No. 6 E. Lancaster Avenue, be cancelled and that the premises be conveyed to it at such price as the court should deem fair and equitable. In its adjudication the court apparently agreed with all of plaintiff's contentions and held that defendants had violated plaintiff's rights under its option; nevertheless it dismissed the bill, apparently on the theory that notwithstanding the sale to Edith Tobin plaintiff's option still remained valid and was unaffected by the conveyance to her of the three properties. From this decree plaintiff took the present appeal.
One of the agents who had himself written the letter of January 31st to Wallach testified that the offer therein referred to of $105,000 cash for the three properties was an offer that had been received from one George Barski. The question arises whether this was an independent offer of Barski himself, or one made on behalf...
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