Lehrer v. McCloskey Homes, Inc., No. 12240.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: BIGGS, , MARIS, Circuit , and KRAFT
• Citation: 245 F.2d 11
• Parties: Lewis LEHRER and Eleanor B. Lehrer, His Wife, Appellants, v. McCLOSKEY HOMES, Inc. and McCloskey & Co. of Florida.
• Docket Number: No. 12240.
• Decision Date: 04 June 1957

245 F.2d 11 (1957)

Lewis LEHRER and Eleanor B. Lehrer, His Wife, Appellants,
v.
McCLOSKEY HOMES, Inc. and McCloskey & Co. of Florida.

No. 12240.

United States Court of Appeals Third Circuit.

Submitted May 15, 1957.

Decided June 4, 1957.

245 F.2d 12

Donald Bowman, Bernard J. Korman, Philadelphia, Pa. (Gold & Bowman, Philadelphia, Pa., on the brief), for appellants.

J. Dress Pannell, Harrisburg, Pa., Lawrence D. Biele, Philadelphia, Pa., for appellee.

Before BIGGS, Chief Judge, MARIS, Circuit Judge, and KRAFT, District Judge.

BIGGS, Chief Judge.

This is the second time this case has come before us. On the first occasion we dismissed the appeal at our No. 11,954 because the court below had not seen fit to make the determination and the order required by Rule 54(b), F.R.Civ. Proc., 28 U.S.C., and hence we had no final decision before us within the purview of 28 U.S.C. § 1291, 3 Cir., 242 F. 2d 190. The court below has now entered an order within the terms of Rule 54(b), the plaintiffs have taken an appeal from that order and the case is now ripe for decision.

Two corporations are named as defendants in the case at bar. The first is McCloskey Homes, Inc. (McCloskey of Delaware), a Delaware corporation: the second is McCloskey & Company of Florida (McCloskey of Florida), a Florida corporation. The first named corporation sold homes in Whitemarsh Village, Pennsylvania; the second built them. The plaintiffs, the Lehrers, man and wife, made a contract of sale with McCloskey of Florida, under which the latter agreed to construct a dwelling house on and to sell certain premises in Whitemarsh Village to the plaintiffs. The plaintiffs agreed to buy the premises and to make settlement when the house and grounds were completed. The complaint avers, and the contract of sale which accompanies the complaint states, that McCloskey of Florida agreed to complete the building and grounds in a satisfactory manner and in a way "substantially similar in grade and type as that exhibited" by a sample home on display in Whitemarsh Village.

245 F.2d 13

On November 9, 1951, the day proposed for settlement, the house and grounds had not been completed. The complaint alleges that nonetheless the plaintiffs settled for the property, paying the balance to the "defendants," McCloskey of Delaware and McCloskey of Florida, and that they were induced to do so by both defendants asserting that the house and grounds, insofar as they had been completed, were like the sample house and grounds, and would be finished in a satisfactory manner; that on December 7, 1951 the plaintiffs took possession and moved into the house and that substantial defects then became apparent to the plaintiffs in the house's plumbing system, its heating system, the construction and finishing of the house's roof and walls, and in the landscaping; that these defects were called to the attention of the defendants, who refused to cure them; and that it became necessary for the plaintiffs to expend substantial sums of money, in excess of the jurisdictional amount, in effecting the necessary repairs. The plaintiffs sued both McCloskey...