47 Pa. Super. 22 | Pa. Super. Ct. | 1911
Opinion by
This appeal is from judgment for want of sufficient affidavit of defense in an action of assumpsit brought to recover the down payment made by the plaintiff to the defendant upon a contract for the sale of real estate, consisting of eight lots and dwelling houses. The contract stipulated that the settlement be made on or before a specified date, and that the title be free and clear of all incumbrances, easements, mechanics’ and municipal liens and building restrictions, and be such as will be insurable
1. It was suggested in the affidavit of defense that the allegation of the statement as to the easement did not state a fact but a conclusion of law. The averment that the land was subject to an easement did, it is true, involve a conclusion of law, but if it was coupled with an averment of facts out of which, in the absence of other facts, such conclusion would necessarily arise, it was incumbent on the defendants to deny the facts or to confess and avoid them. The defendants did not deny the facts categorically, but in further explanation of the nature, location and purpose of the sewer, they alleged that at the time of the building of the houses there was no city sewer running parallel with the street on which they fronted, that the owner constructed a private terra cotta sewer to connect the houses with a city sewer on another street, and that they were still so connected. Taking this allegation with that of the statement, the fair implication is that the other land over which there is a right to carry this private sewer lies between the land in question and the city sewer referred to. At any rate, there is no sufficient basis in the statement of claim, or in the affidavit of defense or in both taken together, for an implication that there is a right in anyone but the
2. It was further alleged in the statement that the lots were not connected with the city sewer laid in the street on which they front, “and that upon order of the city authorities at any time the plaintiff would be required to connect the said lots and premises with the city sewer, thereby placing upon the plaintiff an additional
3. The remaining question to be considered arises out of the agreement that the title was to be "such as will be insurable at regular rates by the title insurance companies,” and the averment of the statement of claim that the Land Title & Trust Company refused to insure the title. The agreement was not that every title insurance company, or that any particular title insurance company would insure the title, but that the title would be such as would be insurable by the title insurance companies. It is apparent that an allegation that a single company refused to insure is not tantamount to an allegation that the title was not considered insurable by title insurance companies in general. Therefore, in holding that the statement of claim does not allege in clear and unequivocal terms a breach of this part of the agreement, we are
The case may present an entirely different aspect upon full development of the facts at the trial, but upon deliberate consideration of the statement of claim and the affidavit of defense we conclude that it was not one for summary judgment.
The judgment is reversed and the record is remitted with a procedendo.