60 A.2d 599 | Pa. Super. Ct. | 1948
Argued March 17, 1948. Rose Messinger, appellant, instituted suit in assumpsit to recover a portion of deposit money paid under a written agreement of sale of real estate and now complains of judgment entered for Mary Oliver Lee, appellee. By agreement of counsel the case was withdrawn from the jury and thereafter pertinent provisions of the pleadings were offered in evidence. The court made findings of fact, conclusions of law and entered judgment for appellee. Appellant's exceptions were overruled, a final judgment entered and this appeal followed.
Appellant agreed to purchase premises, 133 South Kingston Avenue, Atlantic City, New Jersey, for $12,000.00 under a written agreement of sale dated August 2, 1944, and paid the sum of $1,000.00 as down *299 money. At the signing of the agreement, appellee advised appellant that she, appellee, was acting for her son, Robert H. Lee, who was then in the United States Navy and that her son and his wife would join in executing a proper deed with the appellee at the time of settlement. Appellee further advised appellant that she had previously conveyed title to the premises in question to her son by deed, which deed she recorded on August 7, 1944, several days after the execution of the agreement in controversy.
The agreement which was "to apply to and bind the Heirs, Executors, Administrators and Assigns of the respective parties" provided, inter alia, that "The title to said premises is to be a good and marketable title and such as Title Company to be designated by the said Vendee will insure. Said Deed is to be delivered and final settlement made at the offices of said Company on or before the 1st day of December, 1944, at 11:00 o'clock a.m. . . ." The agreement contained no liquidated damages clause. The following facts, found by the court below, are amply supported by the testimony and admissions of the appellant:1 On or about November 18, 1944, appellant, through her counsel, notified appellee that she had decided not to complete the purchase; that appellant never applied for title insurance, never designated a title company, never designated a place of settlement nor made any preparations for settlement in connection with the premises on or before December 1, 1944. On January 2, 1945, the premises were conveyed by Robert H. Lee and his wife to Jacob Blumberg and his wife for $11,750.00. Appellant then instituted the present suit and sought to recover, not the $1,000.00 deposit, but $750.00 which represented the excess [over the original *300 sale price] received by appellee after the Blumberg sale by reason of appellant's failure to make settlement for the property pursuant to the agreement of August 2, 1944, or in other words the appellee was entitled to only $12,000.00, not $12,750.00.
Appellant complains that she, as vendee, was not obligated to take the deed of a third person, to wit, Robert H. Lee and his wife, who were not parties to the agreement of sale. The answer to appellant's contention is that Robert H. Lee and his wife were at all times ready, able and willing to perform the agreement entered into by appellee, their agent, to convey the premises to the appellant in accordance with the agreement. Furthermore, appellant knew and admitted that appellee was acting for her son, that there was an unrecorded deed to him which she would record immediately after the signing of the agreement of sale, and consequently the real seller for whom appellee was acting as agent and from whom appellant would receive a deed was Robert H. Lee. Cf. Riling v. Idell,
The argument that Mary Oliver Lee was not an agent for her son because she lacked written authority must fail as the agency is admitted by the pleadings. Moreover, it is of no moment in this case; Robert H. Lee was ready and willing to perform but was prevented from doing so by appellant's repudiation of the agreement. As stated in Roberts v. Roesch,
The question for determination, therefore, is whether a vendee who is in default can recover a portion of the down money paid. The court below properly concluded that a vendee in default, in the circumstances disclosed by this record, was not entitled to a return of a portion of the deposit money.
The contract was executed in New Jersey, concerning real estate situate in New Jersey, and consequently the validity and effect of such a contract is governed by the laws of the situs of the land. It is governed by lex loci contractus and lex loci reisitœ. Restatement, Conflict of Laws, § 340.
The law of New Jersey set forth in Steinbach v. Pettingill,
Judgment affirmed.