Argued October 10, 1923. 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 *Page 444 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 defendants 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 was not admissible. Whether it was or not we cannot determine, for the reasons already stated.
The judgment is affirmed