Mankus v. Boyd , 52 Pa. Super. 73 ( 1912 )

Per Curiam,

This case arose out of an agreement between the plaintiff and the defendant for the sale by the latter to the former of “a wholesale liquor business license, good-will, lease and fixtures.” By the terms of the agreement, if the transfer of the license should not be granted by the court or if the plaintiff should be unable to procure a lease and possession of the premises, the agreement was to become null and void and the sum of $150, paid as part of the purchase money at the execution of the agreement, was to be forthwith returned to the plaintiff, but if the failure to obtain a transfer of the license should be “due to some default upon the part of the purchaser,” then the defendant should be entitled to retain the $150. The question involved in this appeal is whether the affidavit of defense sufficiently averred that the refusal of the court to transfer the license was due to some default upon the part of the plaintiff. It is conceded that the record of that proceeding does' not disclose the reasons for the court’s action. Presumably, they were legal reasons, but it does not necessarily follow that any default on the part of the plaintiff was one of them. To entitle the defendant to retain the down money, it was not sufficient that the transfer of the license was refused; it was incumbent on him to aver the facts from which it could be inferred with reasonable certainty that the plaintiff had omitted to do something which he was required by statute or the rules of court to do, and this is not averred in the affidavit. But it is asserted that there was an oral agreement between the parties to the effect that if the transfer was disallowed by reason of any personal disqualifications on the part of the plaintiff to receive the transfer, such personal disqualification should constitute such a default on his part as would entitle the defendant to retain the $150 as his liquidated damages, and that it was upon the basis of this understanding and oral agreement that the written agreement was made. We need not take up time in the discussion of the competency of evidence to establish such outside agreement and understanding as to what should constitute a default. It is enough to say that even if such evidence would be competent, the affidavit is still insufficient because it does not aver that the plaintiff was personally disqualified to receive the transfer. True, it is averred that a third person orally remonstrated against the granting, of the transfer, alleging inter alia, that the plaintiff was personally unfit and disqualified to receive it, but this averment as to what was said at the hearing falls very far short of averring that the plaintiff was unfit and disqualified or that the court refused the license because of such unfitness. In any view of the case no such default on the part of the plaintiff is alleged in the affidavit of defense as entitled the defendant to retain the money paid at the execution of the agreement.

Judgment affirmed.