Smolevitz v. Slonimsky

Citations

• 67 Pa. Super. 227
• 1917 Pa. Super. LEXIS 376

Syllabus

<p>Contract — Written agreement — Construction by action of parties —Pleadings—Practice, Municipal Court of Philadelphia.</p> <p>In a case tried in tbe Municipal Court of Philadelphia, without a jury, it appeared that plaintiffs and defendants had agreed in writing to exchange real estate. The property which the plaintiffs were to acquire was to be subject to a mortgage of a building and loan association. The agreement provided that “all back stock paid in on account of this building association mortgage be assigned free of costs” to the plaintiffs. The plaintiffs claimed1 that the installments on the stock were to be paid in full to the time of settlement, and produced evidence that defendants at the time of settlement had represented that the arrears were $26.25, and paid the plaintiffs that amount. The arrears were found to be $72.72. Suit was brought to recover the difference. Held, that a judgment for the plaintiffs should be sustained.</p> <p>In the above case, plaintiffs averred in a paragraph of their statement that “defendants recognizing their liability to pay said arrears, gave to the plaintiff at the time of settlement the sum of $26.25 with which to pay said arrears.” To this paragraph defendants answered: “While plaintiffs were given $26.25, it is-denied that it was given for the purpose stated.” Another, and a final paragraph of the answer averred that the sum of $26.25 was made in full payment and settlement of all claims of the plaintiffs. Held, that the final paragraph did not contain new matter to which a reply was required to be made under the statute.</p>