Lieberman v. Har Nebo Cemetery Co.

Superior Court of Pennsylvania

Lieberman v. Har Nebo Cemetery Co.

82 Pa. Super. 178, 1923 Pa. Super. LEXIS 266

CourtSuperior Court of Pennsylvania

DecidedOctober 4, 1923

DocketAppeal, 12

StatusPublished

Cited by1 cases

This text of 82 Pa. Super. 178 (Lieberman v. Har Nebo Cemetery Co.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lieberman v. Har Nebo Cemetery Co., 82 Pa. Super. 178, 1923 Pa. Super. LEXIS 266 (Pa. Ct. App. 1923).

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Opinion

Opinion by

Keller, J.,

The plaintiff agreed to buy from the defendant four cemetery lots, Nos. 139, 140, 159 and 160, for $1,000, and paid $200 on account, for which the defendant gave him its receipt, identifying the lots to be conveyed. .Before the transaction was completed defendant’s president, who signed the receipt on its behalf, notified plaintiff that said lots had been sold to another person prior to the sale thereof to him, and offered him lots Nos. 99, 100, 119 and 120, instead. Plaintiff, after inspecting these lots, orally agreed to the change. Some time thereafter, however, plaintiff was notified by defendant’s president that these lots, also, had been sold, but that he could have the four lots originally bargained for. Plaintiff refused further dealings and demanded back the money he had paid on account, and, upon the defendant’s refusal to pay, brought this action to recover it. The court below, sitting without a jury, found in plaintiff’s favor, and rightly so, in our opinion. The original agreement was revoked by consent of both parties and a new subject-matter substituted. When, subsequently, it was found that the substituted lots could not be conveyed, and the second agreement of sale fell through in consequence, that did not revive the original agreement, merely because it was discovered that the defendant’s officers had been mistaken as to the prior sale of the lots first contracted for. Unlike the case of Shamlian v. Waxman, 80 Pa. Superior Ct. 73, relied upon by appellant, the parties here consented to the annulment of the original agreement. We said in that case: “Had the plaintiffs accepted the offer of cancellation thus tendered [by defendants] they would have been entitled to a return of their deposit money.” The same principle applies here.

The judgment is affirmed.

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Opinion by

Keller, J.,

The plaintiff agreed to buy from the defendant four cemetery lots, Nos. 139, 140, 159 and 160, for $1,000, and paid $200 on account, for which the defendant gave him its receipt, identifying the lots to be conveyed. .Before the transaction was completed defendant’s president, who signed the receipt on its behalf, notified plaintiff that said lots had been sold to another person prior to the sale thereof to him, and offered him lots Nos. 99, 100, 119 and 120, instead. Plaintiff, after inspecting these lots, orally agreed to the change. Some time thereafter, however, plaintiff was notified by defendant’s president that these lots, also, had been sold, but that he could have the four lots originally bargained for. Plaintiff refused further dealings and demanded back the money he had paid on account, and, upon the defendant’s refusal to pay, brought this action to recover it. The court below, sitting without a jury, found in plaintiff’s favor, and rightly so, in our opinion. The original agreement was revoked by consent of both parties and a new subject-matter substituted. When, subsequently, it was found that the substituted lots could not be conveyed, and the second agreement of sale fell through in consequence, that did not revive the original agreement, merely because it was discovered that the defendant’s officers had been mistaken as to the prior sale of the lots first contracted for. Unlike the case of Shamlian v. Waxman, 80 Pa. Superior Ct. 73, relied upon by appellant, the parties here consented to the annulment of the original agreement. We said in that case: “Had the plaintiffs accepted the offer of cancellation thus tendered [by defendants] they would have been entitled to a return of their deposit money.” The same principle applies here.

The judgment is affirmed.

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Bluebook (online)

82 Pa. Super. 178, 1923 Pa. Super. LEXIS 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lieberman-v-har-nebo-cemetery-co-pasuperct-1923.

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