77 Pa. Super. 101 | Pa. Super. Ct. | 1921
Opinion by
The plaintiff in this action of assumpsit seeks to recover a part of the money paid under a contract relating to a contemplated purchase by her of certain real estate. The contract was in writing and a copy thereof was attached to and made part of plaintiff’s statement. The defendants without answering the averments of fact in the statement of claim, filed an affidavit of defense rais
The statement of claim filed by the plaintiff averred that she had on May 14, 1920, the date of the execution of the written contract in question, paid to the defendants the sum of $50 as by the agreement required; that she had on May 18,1920, paid an additional sum of $250, pursuant to the terms of the contract; that she had been unable to comply with the other terms of said agreement and to make settlement for said premises on the date specified by the contract, of which defendants were notified, and that under the terms of the contract she was entitled to recover the sum of $250, which she had paid as an additional deposit. The written agreement, which was a part of the statement, was certainly peculiar in its terms. In its opening paragraph the defendants agreed to sell and convey and the plaintiff agreed to purchase a house and lot on 50th Street, Philadelphia, for the price of $5,200, $50 to be paid in cash on the signing of the agreement; settlement to be made on or before June 28, 1920, when the balance of the cash purchase money was to be paid. Another paragraph required the purchaser^ this plaintiff, to pay an additional deposit of $250, on account of the agreement, on or before Tuesday, May 18, 1920, that is, prior to the date of settlement. But while the opening paragraphs of the agreement seem to indicate that the parties really intended to enter into an agreement for the sale and purchase of the land, when they came to provide for the details of the execution of the contract they introduced the following covenants which absolutely changed its whole nature: “It is hereby mutually understood and agreed......that should the party of the first part fail to give such title, he will return to the party of the second part the amount paid by her on account of the said purchase, in lieu of all claims for damages or otherwise and this agreement
The court below did fall into error, however, in entering judgment in favor of the plaintiff. The 20th section of the Act of May 15, 1915, P. L. 483, gave defendants the right to raise any question of law, by their affidavit of defense, without answering the averments of fact in the statement of claim. The section of the statute in question provides: “If the court shall decide the question of law, so raised against the defendant, he may file a supplemental affidavit of defense to the averments of fact in the statement within fifteen days.” The court below having decided the question of law against the defendants should have allowed them fifteen days within which to file a supplemental affidavit of defense: Shifferstine v. Sitler, 264 Pa. 290.
The judgment is reversed and the record is remitted to the court below with direction to modify the order and permit defendants to file an affidavit of defense within fifteen days.