Holz v. Smyth

Citations

• 59 Pa. Super. 83
• 1915 Pa. Super. LEXIS 25

Syllabus

<p>Vendor and vendee — Sale of land — Construction of contract.</p> <p>1. An agreement for the sale of real estate signed by the purchaser as agent without disclosing a principal contained a provision that “the. premises are to be conveyed clear of incumbrances, except that the party of the first part assumes no liability to deliver the property free from the possession of its present occupants. The title is to be good and marketable, and such as will be insured by any reputable title insurance company.” There was evidence that several trust companies had refused to insure the title, but the evidence was conflicting as to whether it was due to a defect in the title, or was due to an objection based on the possession of the present occupants. The defendant presented a point attempting to give the gist of the agreement, but failing to embody the provision as to the title insurance. The object of the point was to secure a construction of the agreement. The plaintiff testified that he was acting for himself, had paid his own money as hand money, and had no principal. In an action to recover back the hand money Held (1) that the case was for the jury; (2) that there was no sufficient evidence to warrant a submission of the question of agency to the jury and (3) that the defendant’s point was properly refused.</p> <p>2. In the above case it appeared that both plaintiff and defendant signed a receipt for the hand money, the receipt embodying the provision “title to be good and marketable. . . . Purchaser to take subject to possession of present occupants.” The money paid was to be refunded if no settlement was made. There was evidence that the parties regarded the receipt as only temporary, and was to be followed by a formal agreement. Held (1) that there was nothing inconsistent between the receipt and the agreement; (2) that the agreement took the place of the receipt; and (3) that the agreement was not nudum pactum.</p>