Sanders v. Brock

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtMESTREZAT, J.
Citation79 A. 772,230 Pa. 609
PartiesSANDERS v. BROCK.
Decision Date20 March 1911
79 A. 772
230 Pa. 609

SANDERS
v.
BROCK.

Supreme Court of Pennsylvania.

March 20, 1911.


Appeal from Court of Common Pleas, Philadelphia County.

Action by Albert J. Sanders against Sedon J. M. Brock. From an order discharging rule for judgment for want of a sufficient affidavit of defense, plaintiff appeals. Affirmed.

Assumpsit for money had and received. Rule for judgment for want of a sufficient affidavit of defense. The material averments of the statement of claim and affidavit of defense are set forth in the opinion of the Supreme Court.

Argued before FELL, C. X, and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ.

Horace Stern and Morris Wolf, for appellant.

H. J. Rebman and James Gay Gordon, for appellee.

MESTREZAT, J. This is a rule for judgment for want of a sufficient affidavit of defense. The action was assumpsit to recover back $2,000 paid by plaintiff to the defendant as part purchase money on a sale of certain real estate sold by the defendant to the plaintiff, and which sale the latter declined to complete by refusing to take the property and pay the balance of the purchase money.

By an agreement in writing dated January 14, 1910, the defendant agreed to sell and convey to the plaintiff the premises at 1507 Walnut street, Philadelphia, for the consideration of $104,000, of which $1,000 were to be paid at the signing of the agreement, and the balance at the time of settlement on or before February 1, 1910. The premises were to be conveyed clear of all incumbrances and easements, and the title was to be good and marketable and subject to no restrictions. It was agreed that, if the purchaser made an additional payment of $1,000 on the purchase money, the time of settlement should be extended for a further period of 30 days from February 1st The agreement was executed by the parties as agents for undisclosed principals. The purchaser paid $1,000 at the signing of the agreement, and the additional sum of $1,000 on or about February 1st when the time of settlement was extended to March 2, 1910.

The statement, after setting forth the above facts, avers that on March 2, 1910, the plaintiff was ready and willing and offered to settle for the property according to the terms of the agreement, but the defendant was unable to convey the premises clear of incumbrances and easements and with no restrictions; that on said date the fair market value of the property was at least $104,000, the price agreed to be paid by the plaintiff for it; that subsequently to the said date and prior to the bringing of this suit the defendant sold the property for a price largely in excess of the sum agreed to be paid for it by the plaintiff, although the property was of no greater value at the time of the sale than on March 2, 1910; and that by reason of the premises the defendant was not injured by plaintiff's alleged breach of contract and is therefore not entitled to retain the $2,000 which was paid

79 A. 773

him by the plaintiff as part of the purchase money.

The defendant filed an affidavit of defense in which he admits the execution of the contract and the payment of the $2,000 as averred in the statement. He alleges that before the date of the agreement with the plaintiff he had become the purchaser of the premises in question under the terms of a written agreement dated December 24, 1909, under which he paid to the vendor $2,000 on account of the purchase money, and by the terms of the agreement he was obliged to make final settlement on March 2, 1910. He avers that the plaintiff had knowledge of these facts, and desiring to prevent the defendant from carrying out his contract for the purchase of the premises in order that he might thereupon take advantage of the defendant's default therein by becoming himself the purchaser of the premises, and with such intent the plaintiff willfully planned and contrived to delay the final settlement until the time for completing defendant's purchase should expire, so that the plaintiff might obtain the property directly from the defendant's vendor, thereby causing the defendant to lose the sum of $2,000 paid on account of the purchase money.

The affidavit denies that plaintiff was ready to settle on March 2, 1910, as alleged in the statement, and avers that on said date the defendant "was prepared to give a good and marketable title to all of the said property and estate called for in the said agreement and in good faith tendered a proper conveyance thereof to the said plaintiff, who, without good reason or legal excuse, positively declined and refused to take the said title or to pay the balance of the purchase money reserved and stipulated in the said agreement."

The defendant admits that prior to the bringing of the suit he sold the property for a price in excess of $104,000, but avers that he did not sell "until after the plaintiff had without good cause or lawful excuse, himself violated his said agreement, and had positively refused to take title to the said property or to pay the purchase price therefor."

The plaintiff bases his right to recover back the $2,000 on the fact that, the defendant having resold the property for a sum in excess of the price agreed to be paid by the plaintiff, the defendant was not injured by the plaintiff's breach of the contract and must therefore return the sum paid on the purchase money.

We must deal with the case on the averments of fact in...

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64 practice notes
  • Traylor v. Grafton, No. 30
    • United States
    • Court of Appeals of Maryland
    • February 10, 1975
    ...Quillen v. Kelley, 216 Md. 396, 140 A.2d 517 (1958). See as well Roberts v. Roesch, 306 Pa. 435, 159 A. 870 (1932); Sanders v. Brock, 230 Pa. 609, 79 A. 772 (1911); Luria v. Robbins, 223 Pa.Super. 456, 302 A.2d 361 (1973) allocatur ref'd. When an amount specifically agreed upon is designate......
  • Butko v. Ciccozzi (In re Butko), Case No. 20-21255-GLT
    • United States
    • United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Western District of Pennsylvania
    • January 8, 2021
    ...Inc. v. Krawitz, 772 A.2d at 120.371 Kaufman Hotel & Rest. Co. v. Thomas, 411 Pa. 87, 92, 190 A.2d 434, 436 (1963) ; Sanders v. Brock, 230 Pa. 609, 615, 79 A. 772, 773 (1911) ; Luria v. Robbins, 223 Pa. Super. 456, 465, 302 A.2d 361, 366 (1973) ; Ditzler v. Kinsell, 34 Pa. D. & C.3d 72, 74 ......
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • July 17, 1923
    ...43 N.Y. 218; Hillyard v. Banchor, 118 P. 67; Long v. Clark, 135 P. 673; Bartlesville Oil Co. v. Hill, 121 P. 208; Sanders v. Brock, 79 A. 772; Jones v. Mississippi Farms C., 76 So. 880; Glock v. Howard & Wilson Co., 55 P. 713; Downey v. Riggs, 70 N.W. 1091; Grimes v. Goud, 10 A. 116.) Remed......
  • Miller v. Barker
    • United States
    • Supreme Court of Oregon
    • December 31, 1962
    ...1505 (1925), and cases cited therein; Lake v. Bernstein, 215 Iowa 777, 246 N.W. 790, 793-794, 102 A.L.R. 846 (1933); Sanders v. Brock, 230 Pa. 609, 79 A. 772, 774, 35 L.R.A.,N.S., 532 (1911): 'It would be an alarming doctrine to hold that the plaintiffs [vendees] might violate the contract;......
  • Request a trial to view additional results
64 cases
  • Traylor v. Grafton, No. 30
    • United States
    • Court of Appeals of Maryland
    • February 10, 1975
    ...Quillen v. Kelley, 216 Md. 396, 140 A.2d 517 (1958). See as well Roberts v. Roesch, 306 Pa. 435, 159 A. 870 (1932); Sanders v. Brock, 230 Pa. 609, 79 A. 772 (1911); Luria v. Robbins, 223 Pa.Super. 456, 302 A.2d 361 (1973) allocatur ref'd. When an amount specifically agreed upon is designate......
  • Butko v. Ciccozzi (In re Butko), Case No. 20-21255-GLT
    • United States
    • United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Western District of Pennsylvania
    • January 8, 2021
    ...Inc. v. Krawitz, 772 A.2d at 120.371 Kaufman Hotel & Rest. Co. v. Thomas, 411 Pa. 87, 92, 190 A.2d 434, 436 (1963) ; Sanders v. Brock, 230 Pa. 609, 615, 79 A. 772, 773 (1911) ; Luria v. Robbins, 223 Pa. Super. 456, 465, 302 A.2d 361, 366 (1973) ; Ditzler v. Kinsell, 34 Pa. D. & C.3d 72, 74 ......
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • July 17, 1923
    ...43 N.Y. 218; Hillyard v. Banchor, 118 P. 67; Long v. Clark, 135 P. 673; Bartlesville Oil Co. v. Hill, 121 P. 208; Sanders v. Brock, 79 A. 772; Jones v. Mississippi Farms C., 76 So. 880; Glock v. Howard & Wilson Co., 55 P. 713; Downey v. Riggs, 70 N.W. 1091; Grimes v. Goud, 10 A. 116.) Remed......
  • Miller v. Barker
    • United States
    • Supreme Court of Oregon
    • December 31, 1962
    ...1505 (1925), and cases cited therein; Lake v. Bernstein, 215 Iowa 777, 246 N.W. 790, 793-794, 102 A.L.R. 846 (1933); Sanders v. Brock, 230 Pa. 609, 79 A. 772, 774, 35 L.R.A.,N.S., 532 (1911): 'It would be an alarming doctrine to hold that the plaintiffs [vendees] might violate the contract;......
  • Request a trial to view additional results

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