O.J. Morgan v. Thomas J. Diskin

Superior Court of Pennsylvania

O.J. Morgan v. Thomas J. Diskin

81 Pa. Super. 411, 1923 Pa. Super. LEXIS 98

CourtSuperior Court of Pennsylvania

DecidedApril 16, 1923

DocketAppeal, 80

StatusPublished

This text of 81 Pa. Super. 411 (O.J. Morgan v. Thomas J. Diskin) 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.

Bluebook

O.J. Morgan v. Thomas J. Diskin, 81 Pa. Super. 411, 1923 Pa. Super. LEXIS 98 (Pa. Ct. App. 1923).

Pincite

Opinion

Opinion by

Linn, J.,

This appeal challenges a judgment entered for want of a sufficient affidavit of defense. Plaintiff sued for $550 which he alleged he gave defendant, his real estate agent, about April 1, 1920, to pay to the holder of a mortgage on premises then purchased by plaintiff through the agent, subject to the mortgage. Defendant concedes so receiving the money, and its nonpayment on the mortgage, but avers another transaction between him and plaintiff as justifying the temporary retention of the money.

He avers that on January 31, 1920, plaintiff agreed to sell certain real estate to one Richer, and that on March 29, 1920, Richer assigned his rights under the agreement to defendant, and that on April 1, 1920, plaintiff agreed with defendant that “if any defects cloud my [plaintiff’s] title to property conveyed in said agreement [with Richer], said payment of $550 is not to be credited to the Coontz mortgage until all defects are corrected.” That agreement of sale provided for its consummation within a reasonable time. It does not appear that defendant did anything to comply with his agreement to buy, though more than two years elapsed before that suit was brought; for aught that appears he is in default and without any rights under the assignment; he gives no reason for not going ahead. Having defaulted in that agreement, the condition on which the $550 was to be held temporarily, became inoperative and ceased to be an element in the case; his affidavit of defense states no right longer to retain it.

Judgment affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Opinion by

Linn, J.,

This appeal challenges a judgment entered for want of a sufficient affidavit of defense. Plaintiff sued for $550 which he alleged he gave defendant, his real estate agent, about April 1, 1920, to pay to the holder of a mortgage on premises then purchased by plaintiff through the agent, subject to the mortgage. Defendant concedes so receiving the money, and its nonpayment on the mortgage, but avers another transaction between him and plaintiff as justifying the temporary retention of the money.

He avers that on January 31, 1920, plaintiff agreed to sell certain real estate to one Richer, and that on March 29, 1920, Richer assigned his rights under the agreement to defendant, and that on April 1, 1920, plaintiff agreed with defendant that “if any defects cloud my [plaintiff’s] title to property conveyed in said agreement [with Richer], said payment of $550 is not to be credited to the Coontz mortgage until all defects are corrected.” That agreement of sale provided for its consummation within a reasonable time. It does not appear that defendant did anything to comply with his agreement to buy, though more than two years elapsed before that suit was brought; for aught that appears he is in default and without any rights under the assignment; he gives no reason for not going ahead. Having defaulted in that agreement, the condition on which the $550 was to be held temporarily, became inoperative and ceased to be an element in the case; his affidavit of defense states no right longer to retain it.

Judgment affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

81 Pa. Super. 411, 1923 Pa. Super. LEXIS 98, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oj-morgan-v-thomas-j-diskin-pasuperct-1923.