Practice — Judgments — Judgment on pleadings — Case not clear and free from doubt — Assumpsit for recovery of deposit — Purchase of real or personal property — Counterclaim.
In this case, in which it appeared that plaintiff in his complaint averred that he gave defendant a specified sum by check as a "tentative deposit on a tentative purchase" of particular premises, pending the determination of the parties as to whether they would enter into a binding contract for the sale of a "restaurant, fixtures, . . . of the aforesaid premises", and that the parties decided "not to enter into the deal", and that plaintiff demanded return of the money paid by him; that defendant denied plaintiff's allegations, averred that the money paid by plaintiff was a firm deposit on account of the purchase by plaintiff of the business, etc., including the name under which the business operated, that a memorandum, pending a formal written agreement, was signed by plaintiff's agent, and that by reason of plaintiff's failure to make settlement defendant had sustained a loss in a specified sum, for which he counterclaimed; that plaintiff answered by setting up, inter alia, the statute of frauds applying to personal property and to real estate, and then moved for judgment on the pleadings in the amount of his claim and for judgment on defendant's counterclaim; and that the court below, concluding that the pleadings did not present a case clear and free from doubt, denied plaintiff's motions; it was Held that the order of the court below should be affirmed.
Argued September 17, 1959.
OPINION PER CURIAM, November 11, 1959:
The order of the court below is affirmed on the opinion of Judge PIEKARSKI of the Municipal Court of Philadelphia, as reported in 18 Pa. D. C. 2d 667.