Plauschinat v. Shapiro , 70 Pa. Super. 606 ( 1919 )

Opinion by

Williams, J.,

Plaintiff asked for specific performance of an alleged contract to convey a business and good will, and to refrain from engaging in the same business for five years within a certain district.

The price was to be $1,500, and plaintiff paid $100 on account. The agreement sued on is a receipt for the amount paid and contains, inter alia, the following provision: “The contract of purchase to be evidenced by a written agreement to be executed by myself, with the said Adolph Plauschinat.” The effect of this was to leave uncertain what the parties would ultimately agree upon, and shows the agreement alleged was not complete in itself, but was a mere aim looking to the future adjustment of details, such as was held incapable of specific performance in Wistar’s App., 80 Pa. 484.

It does not appear that defendant’s business is the only one which might be bought which would answer plaintiff’s purpose. The ground for equitable jurisdiction is some peculiar attribute of the property to be conveyed making it practically impossible to replace in the open market: Northern Cent. Ry. Co. v. Walworth et al., 193 Pa. 207.

We do not think this case presents such exceptional features as would warrant specific performance.

The appeal is dismissed, appellant to pay costs.