Solomon v. Loy

82 Pa. Super. 99, 1923 Pa. Super. LEXIS 243

• Court: Superior Court of Pennsylvania
• Decided: October 3, 1923
• Docket: Appeal, 51
• Status: Published

Opinion

Opinion by

Linn, J.,

Defendant employed Freeman and Company, auctioneers, at public sale to sell certain real estate described in their advertisement (appearing in the reporter’s statement of the case). The sale was held on March 31,1920; plaintiff’s bid of $12,400 was accepted, and he paid $750 on account pursuant to the terms of sale. On May 7, 1920, defendant tendered him a deed for a lot of ground twenty feet wide with improvements etc., as described in the advertisements upon the faith of which plaintiff said he bought. He declined to receive it and demanded back the $750 paid on account, not because of any objection to the deed, or the title, but, it would seem, because the house was not as wide as the lot. He then brought this suit to recover the $750 so paid.

Defendant filed an affidavit of defense in which he denied liability, and counterclaimed for $4,150, alleging, inter alia, that after plaintiff’s refusal to perform, defendant, pursuant to a condition of the auction so providing (also quoted above by the reporter) again had the premises advertised for public sale by the same auctioneer and had them duly sold on June 23, 1920, to the highest bidder for $7,500, thereby losing $4,900, on which he credited plaintiff with the deposit of $750, leaving $4,150 for which he counterclaimed. Plaintiff replied to the counterclaim and the parties went to trial.

On plaintiff’s own testimony, the advertisements, and the admissions read into the record from the pleadings, he was not entitled to recover and the court should so have instructed the jury. Plaintiff offered in evidence an admitted paragraph from the statement of claim, stating that he purchased the property “in sole reliance of the representations made by Samuel T. Freeman & Co., at the time of the sale......”; these representations were in the advertisements which were also admitted. Plaintiff’s admission of an allegation in the counterclaim was read, to the effect that prior to and at the time of the sale, defendant was the owner of the property offered for sale. Similarly, the parties read an averment that on May 7,1920, defendant tendered plaintiff “a good and sufficient deed of conveyance for the land so purchased......and demanded from plaintiff the balance of the purchase money......” There was no evidence justifying plaintiff’s refusal to complete his purchase. Indeed, as the charge indicates that the trial judge was of that' opinion, it was doubtless only by inadvertence that the matter was submitted to the jury. He instructed the jury that there was nothing in the advertisements (on which plaintiff’s “sole reliance” was based) to indicate that “the structure on that lot was of the width of twenty feet.” He affirmed the following point: “In this case I charge you that according to the description under which this property was sold to the plaintiff, plaintiff was bound to accept a conveyance of land 20 feet front, irrespective of the size of the house erected on that land, and the plaintiff’s refusal to accept such a conveyance constitutes such a breach of his contract as would bar,a recovery by him.” But he said: “If you believe that Mr. Solomon was not misled in the first sale, that it was an open public auction; that the description of this property was open to him for his in spection; that he could have ascertained all the fact's in reference thereto, the size of the lot and the size of the house thereon, and with his eyes open he purchased this property for $12,400 and paid $750 on account, then he is not entitled to recover the $750 back.” The jury should not have been permitted to disregard the evidence to which we have referred. Plaintiff’s own testimony amounts to nothing more than that he changed his mind; there is no suggestion that the auctioneer’s advertisements or anything connected with the auction was misleading — it is not even suggested that anything in connection with it was misunderstood by the plaintiff.

There is no merit whatever, in the suggestion in appellee’s brief, that a question for the jury was made by plaintiff’s statement that Mr. McManus, attorney for the defendant mentioned in the advertisement, told plaintiff some weeks after the sale that he would get only a lot seventeen feet eleven inches wide; for, though McManus denies the statement, there is no evidence that he was authorized to say defendant would not comply with the terms of sale; the sale was by the auctioneer, not by Mc-Manus; the only evidence of his authority was that stated in the advertisement to furnish “further particulars” of the proposed sale, not to repudiate the sale after it was made by the auctioneer.

As the case involves the trial of the counterclaim, we must send it back for re-trial.

Judgment' reversed; new trial ordered.