Ohlbaum v. Mayer

131 A. 858, 285 Pa. 260, 1926 Pa. LEXIS 439

• Court: Supreme Court of Pennsylvania
• Decided: December 2, 1925
• Docket: Appeal, 314
• Status: Published

Opinion

Opinion by

Mr. Justice Walling,

On May 18, 1923, the defendants agreed in writing to sell plaintiff the property known as 130 South Eighth Street, Philadelphia, for $37,800, of which he paid them $1,500 in hand and $1,000 shortly thereafter. The purchase was not consummated and this suit in assumpsit to recover such advance payments resulted in a verdict and judgment for plaintiff for the $2,500 and interest; therefrom defendants brought this appeal.

The record discloses no reversible error. The contract was made through the agents of the parties, and plaintiff based his right to rescind the same largely on the alleged fraudulent representations of defendants’ agent to the effect that the property in question extended westerly from Eighth Street to an alley, a distance of about sixty-nine feet, whereas in fact it extended back only about forty-nine feet, and was shut out from the alley by a piece of land some twenty feet in width, owned by another. There was ample evidence, notwithstanding the agent’s denial, to take the question of such fraudulent statements to the jury. There was a four-story brick building on the premises and the evidence tended to show he made false and fraudulent statements as to the leases and solvency of the tenants therein, which was also a question for the jury.

The contract provided, inter alia, that, “The title is to be such as will be insured by any reputable title company in Philadelphia,” and there was some evidence, possibly not very convincing, that the title did not meet this requirement. In that connection, plaintiff offered a certificate from the Land Title and Trust Company, stating certain objections to the title. The certificate was produced by an employee of the company, and defendants’ counsel objected to its admission until he could have an opportunity to cross-examine an officer of the company as to statements therein. The trial judge admitted it merely as a certificate of the Land Title and Trust Company. Later, during the trial, defendants called the title officer of the company and examined him fully in regard to the certificate. This removed the only objection made to its admission and cured the error complained of, if such it were.

The contract described the property merely by its lot number, so the alleged statement that it extended to the alley did not contradict the writing. Again, in support of the allegations of fraud, it was competent to show the false statements of defendants’ agent, which induced the execution of the contract: Atherholt v. Hughes, 209 Pa. 156. We have repeatedly so held as to false statements relating to the boundaries of land: Stubbs v. King, 14 S. & R. 206; Frederick v. Campbell, 14 S. & R. 293; Shillingford v. Good, 95 Pa. 25; Griswold v. Gebbie, 126 Pa. 353; Wolf v. Christman, 202 Pa. 475; Keily v. Saunders, 236 Pa. 593. Furthermore, less certainty of proof is required to justify a vendee’s refusal to accept title than to open up a case after the title has passed and the consideration has been paid: Kreiter v. Bomberger, 82 Pa. 59. As defendants affirmed the agent’s contract they are affected with the false statements by which he procured it: Griswold v. Gebbie, supra; McNeile v. Cridland et al., 168 Pa. 16. As tending to disprove the averment of the solvency of the tenants of the building, it was competent to show that bankruptcy proceedings were then pending against those occupying the second floor and that their rent was in arrear.

In support of the averment of false statements as to the property extending to the alley, it was competent to show that defendants’ agent said plaintiff could cut open a door and use the alley, although the question of the right to use the alley was not set out in the pleadings. Statements of the right to cut open the door and use the alley were corroborative of the statement that the land extended to the alley.

Plaintiff offered some testimony as to declarations made by defendants’ agent, after the execution of the contract and before the time of settlement, and when an objection was made thereto it seems to have been overruled, but as no further testimony was offered as to such declarations and no motion was made to strike out that already given, the accuracy of the ruling thereon is immaterial.

As a general rule a case will not be reversed for mere inadequacy of the charge, where, as here, the party complaining failed to request that it be made more specific: Hunter v. Bremer, 256 Pa. 257.

The alleged, after-discovered evidence was not so vital as to compel the granting of a new trial, and the refusal thereof discloses no abuse of discretion.

The assignments of error are overruled and the judgment is affirmed.