20 Pa. Super. 429 | Pa. Super. Ct. | 1902
Opinion by
The contract upon which the plaintiff relies in this case was entered into and consummated entirely by correspondence. Plaintiff wrote defendant from New York, where he lived, February 7, 1901, evidently in reply to a letter of the latter dated February 5: “ Your offer of $1,650 for my wells is too low to consider. . . . Make me another offer and we can come to terms.” Thereupon defendant wrote, February 9: “ In reply, beg to say that I went over this matter very care
Defendant took possession of the property, although as he alleges in his affidavit not until he had consulted “ Charles H. Bradley, Jr., of Pittsburg, who had at various times looked after said property for the plaintiff and who had besought and obtained the defendant’s assistance for the plaintiff in cleaning out the wells when they caved in before; and defendant explained the situation to him and he understood at once the serious danger of loss from shutting down the wells and at once told the defendant to proceed immediately and take charge of the wells and get them in operation as quickly as possible; and, if there was any caving in, he would be responsible for the expense thereof.”
Defendant imposed no conditions and exacted no warranties from the plaintiff. He consulted Bradley, who is not alleged to be the agent or representative of the plaintiff and who made no representations as to the plaintiff’s willingness to make any allowance for cleaning out the wells in the event of their having caved in. Relying, therefore, upon Bradley’s personal undertaking to be responsible for the expense of cleaning out the wells, defendant “ at once ordered and sent to the wells a new boiler and had it set up and took prompt action to get the property in working order.” Defendant subsequently sent plaintiff a check for $1,500, reciting the facts above referred to, accompanied with the statement: “We will get everything in running order and the wells pumped in a few days and, in the event that everything is all right and they do not cave in, I will forward you check for balance. As I said before, if they should cave in — which is very probable — I will clean them out at your expense.” The payment on account is not conditioned
The transaction, as disclosed in the correspondence, shows no fraudulent conduct on the part of the plaintiff. It may be admitted that the defendant was mistaken as to the condition of the wells but it does not appear that the plaintiff, by representation or silence when he should have spoken, contributed in any way to the mistake. The general rule, therefore, as laid down on Benjamin on Sales (6th Am. ed.), 867, applies: “In sales the vendor and purchaser deal at arms’ length, each relying on his own skill and knowledge and each at liberty to impose conditions or exact warranties before giving assent and each taking upon himself all risks other than those arising from fraud or from the causes against which he has fortified himself by existing conditions or warranties. . . . . The exception to this rule exists only in cases, where from the relations between the parties some special duty is incumbent on the one to make full and candid disclosure of all he knows on the subject to the other.”
There is no specific allegation of fraud in the affidavit of defense. The defendant had full opportunity for knowing the exact condition of the wells which he purchased. He made an unconditional offer “ for the property just as it is,” which was accepted. He is clearly liable for the balance of the- purchase price. We must hold, as did the court below, that the affidavit of defense is insufficient.
Judgment affirmed.
