127 A. 612 | Pa. | 1925
Argued January 6, 1925. On May 23, 1921, the plaintiffs, Irwin and Leighton, made a preliminary contract with the defendant, Jacob Weikel, for the construction of an addition to his hotel, the Shelburne, at Atlantic City, for $650,000; to be followed by a formal contract which was prepared and duly executed on June 8th of the same year. The latter recited, inter alia, that a corporation to be known as "The Shelburne Inc." was in process of formation to whom Weikel, who was to be sole stockholder, was to convey the hotel property, and which corporation he guaranteed would, not later than June 30, 1921, execute with plaintiffs a formal contract for the construction of the addition and faithfully perform the same. By the contract of June 8th, Weikel covenanted to procure and deliver to plaintiffs the direct obligation of the Marine Trust Company of Atlantic City, in the sum of $500,000, payable to them according to the terms of the contract. Defendant failed to procure the trust company's obligation or the execution of the contract by the Shelburne Inc., but on November 2, 1921, duly made and executed a written agreement with plaintiffs, inter alia, as follows: "Whereas Jacob Weikel, of Atlantic City, N.J., and Irwin Leighton, of Philadelphia, Pa., have entered into a contract for the construction of an addition to the Shelburne Hotel. — Now, in complete satisfaction of the said contract, Weikel agrees to give and Irwin Leighton to accept as compensation for any expense incurred and any anticipated profits, the sum of thirty-five thousand dollars, to be paid in yearly installments of five thousand dollars each, the first payment to be made June 1st, 1923, and $5,000 each succeeding year until the full amount shall have been paid." Weikel also in this agreement promised to secure the $35,000 by preferred stock of the Shelburne Inc. This he failed to do as he also failed to pay the first installment maturing under the agreement; to recover which this suit was brought. The trial court entered judgment for plaintiffs *262 for want of a sufficient affidavit of defense and defendant has appealed.
Plaintiffs' statement is accompanied by a copy of the contract of June 8, 1921, to which was attached a copy of the building contract to be executed by the Shelburne Inc. It also sets out a copy of the agreement of November 2, 1921, with the averment of its due execution; but omitting the signatures thereto. This omission the affidavit of defense suggests is a fatal defect, although practically admitting defendant signed the agreement and making no denial of the averment of its due execution. The failure of the statement to set out the signatures was at most a formal defect which should have been taken advantage of by motion to strike off, or rule for a more specific statement, as provided by statute (see Practice Act of 1915, P. L. 483, also section 21 thereof as amended by the Act of May 23, 1923, P. L. 325): Franklin Sugar R. Co. v. Lykens M. Co.,
Defendant's main contention is that he was under such duress when he signed the agreement of November 2, 1921, as to relieve him therefrom. His contention is that, because of his inability to secure the $500,000 obligation from the Marine Trust Company, the building contract with plaintiffs had been abandoned and that he was negotiating with other parties for the construction of the addition in question when plaintiffs coerced him into signing the agreement of settlement by threats to bring actions against him both at law and in equity, on account of their contracts with him above referred to. He also avers that, "Deponent executed such paper as a result of such threats, duress and illegal conduct of the plaintiffs, knowing, as deponent did, that the institution of any such suit or proceedings would have prevented the consummation of his other plans." The gist of defendant's averment is that he signed the agreement because of plaintiffs' threats to bring civil suit against him for breach of contract. The case presents no features of unusual hardship; defendant seemingly had breached his contract, for which plaintiffs might properly bring suit; how so doing would have defeated his other plans is not explained, and no facts are stated to support such conclusion. A claim of duress is without avail unless accompanied by a statement of the facts upon which it is founded. See Page on the Law of Contracts, vol. 1, section 508; Levine v. Pittsburgh State Bank,
Plaintiffs' right to judgment was clear and the rule therefor was properly made absolute.
The assignment of error is overruled and the judgment is affirmed.