Fishman v. Berger, 62 Pa. Super. 86

Fishman v. Berger

62 Pa. Super. 86 | Pa. Super. Ct. | 1916

Opinion by

Henderson, J.,

It cannot be seriously contended that the receipt given by the defendant to the plaintiff was in any sense a contract for the sale of the land about which they were negotiating. The defendant had no authority to contract for the owner and did not undertake so to do. This appears from the terms of the receipt as well as from its legal effect. It is also clear that no definite oral arrangement was made between the plaintiff and the defendant. The defendant himself testified: “I gave him a receipt *89and it was understood he was to invest $700.00 in cash and I was to arrange $3,500.00 by mortgages. It was never discussed as to how much and how.” The plaintiff did not see the owner of the land. She only appeared in the transaction when the defendant presented a contract in writing for the sale of the land, signed by her. Granting that it is sufficient if the vendor signed the agreement it is shown by the defendants own evidence that the’ plaintiff refused to accept the contract. There is no pretense that the minds of the plaintiff and the owner of the property met on the terms expressed in the contract presented to the plaintiff for his approval. The plaintiff had never agreed to accept the contract offered him and was in no way bound to take the land. The defendant’s own evidence shows that there never had been any definite arrangement as to the terms under which the deferred payments were to be secured as to time of payment, etc., and there was not, therefore, at any time a completed agreement either oral or written to which the plaintiff was a party. He claimed that his verbal offer was to buy for $4,200.00, subject to $3,500.00 of prior encumbrances, the balance to be paid by him in cash. He was not willing to bind himself personally for the encumbrances. The defendant’s version of the transaction is contradictory of the plaintiff to the extent that nothing was said as to the number of mortgages to be placed on the property. But this version leaves the whole subject of the character of the security for the deferred payments and the time of payment in the air. The learned counsel for the appellant suggests in his argument that “It is probable that if plaintiff had objected to the terms of the formal written agreement defendant would have agreed to modify said terms,” but we can only deal with the transaction as it occurred. The plaintiff had not agreed to the definite terms of any contract and that tendered he refused to accept because it was not in accord with his offer. There was no question to submit to the jury on the uncontradicted evidence in the case, no *90contract existed which bound the plaintiff for the purchase of the land, nor was there any evidence which - amounted to a legal denial of his right to recover in this action the deposit which he had given to the defendant.

The judgment is affirmed.