
    Jaffe v. Kramer and Kramer, Appellants.
    Argued October 10, 1923.
    
      Beal estate — Action for money paid on account of sale — Bes adjudicata — Former suit — Appeals—Becord.
    On an appeal from the findings of a trial judge, in favor of plaintiff, for money paid on account of the sale of real estate, the plea of res adjudieata will not be considered if it appears that the record of the proceedings in the other court were not made a part of the record in the ease appealed. If the defendants desired the appellate court to review the ruling of the trial judge in refusing to admit the record, not only the pleadings but also the notes of testimony in the other suit should have been placed on this record.
    Appeal, No. 211, Oct. T., 1923, by defendants, from the judgment of the Municipal Court of Philadelphia, June T., 1922, No. 681, in favor of the plaintiff in case, tried by the court without a jury, in suit of Abraham Jaffe v. Jacob Kramer and Gussie Kramer.
    Before Orlady, P. J., Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.
    Affirmed.
    Assumpsit to recover money and expenses incurred in the sale of real estate. Before Lewis, J., without a jury.
    The facts are stated in the opinion of the Superior Court.
    The court found in favor of the plaintiff in the sum of $>680 and entered judgment thereon.' Defendants appealed.
    
      Errors assigned were various findings of fact, conclusions of law and the judgment of the court.
    
      Harry Balis, and with him Joseph Gross, for appellants.
    The court erred in refusing to admit in evidence the record in the equity case between the same parties: Nernst Lamp Company v. Hill, 243 Pa. 449; Peoples Water Company v. Pittston, 241 Pa. 208; Westcott v. Edmunds, 68 Pa. 34; Ætna Explosive Co. v. Diamonds Alkali Co., 277 Pa. 392; Kilck v. Gernert, 220. Pa. 503; Shaffer v. Lauria, 64 Pa. Superior Ct. 265.
    November 19, 1923:
    
      Maurice G. Weinberg and Herbert B. Weinberg, for appellee, cited: Pasquinelli v. Southern Macaroni Co., 272 Pa. 468; Mansfield v. Redding et al., 269 Pa. 357; Irwin v. Bleakley, 67 Pa. 24.
   Per Curiam,

Plaintiff sued in assumpsit to recover down money paid and certain expenses incurred by him under an agreement to purchase real estate. The agreement provided for performance within ninety days from the date thereof, time to be of the essence of the contract. Plaintiff’s statement averred a subsequent agreement between the parties to extend the time for settlement to October 14, 1921; that plaintiff was at all times ready, willing and able to perform his part of the contract and offered defendants the moneys due under the contract and requested a deed for the property, but that defendants wholly failed and refused to perform and gave as their reason that they were unable to find another property in which to live and conduct a business. The affidavit of defense denied all the material averments of the statement. The case was tried before Judge Lewis of the municipal court, who found for plaintiff. Appellants’ statement of the questions involved is as follows:

.1. In a suit by a purchaser of real estate for the return of his deposit and expenses on the ground that there was an oral extension of the written agreement during which defendants refused to convey, is it proper to exclude evidence offered by defendants on a plea of res adjudicata that, prior to the institution of this suit at law, plaintiff brought a suit in equity for specific performance resulting in a final decision that there had been no oral extension, and that the plaintiff has been in default?

2. May a judge base his finding upon excluded evidence? The first question is conclusively answered by the fact that no part of the record of the proceedings in the suit in equity was made part of the record in the case at bar, If defendant®' desired to have us review the ruling of the trial judge in refusing to admit the record, not only the pleadings but also the notes of testimony of the equity suit should have been placed in this record. This point is ruled in the recent opinion by the Chief Justice in Pasquinelli v. Southern Macaroni Mfg. Co., 272 Pa. 468. The contention that the trial judge based his findings upon excluded evidence refers to the statement in the opinion of the trial judge that the decree in the equity suit for specific performance of the contract here involved was without prejudice of the right of plaintiff to recover the part of the purchase money paid in a court of law. This statement was made in justification of the court’s ruling that the record of the equity suit whs not admissible. Whether it was or not we cannot determine, for the reasons already stated.

The judgment is affirmed  