Costley v. Smith, 278 Pa. 242

Costley v. Smith

278 Pa. 242 | Pa. | 1923

Opinion by

Mr. Justice Schaffeb,

Plaintiffs filed this bill in equity reciting that they had purchased a dwelling house from defendant in pursuance of a written agreement of sale therefor, had received the deed, and paid the full consideration; that, prior to the signing of the agreement, the defendant falsely and fraudulently represented to plaintiffs, as an inducement to their execution of it, that the walls of the house were of a certain thickness, that the roof was waterproof and that the joists and supporting beams were of a proper kind and character to make the dwelling safe, comfortable and lasting, and that, relying upon these representations, plaintiffs signed the contract and paid the purchase money.

They averred that all these statements made to them were false, particularizing the respects in which they were untruthful, and alleged that, as a result of the defects in the house, it was unsafe to live in and unsalable. They also called attention to the fact that, in the agreement of sale, the defendant bound himself to keep the house in repair for a year following their .purchase, and *244asserted he had failed and refused to do so after notice and set forth that they had been compelled to lay out a considerable sum of money for repairs. Reciting that they had tendered a deed of reconveyance to defendant, and demanded of him a return of the purchase money and payment of damages they had suffered, complainants •asked for a decree cancelling the deed, requiring the defendant to repay to them the purchase money and to make good their damage. Defendant demurred, averring that the suit should have been brought at law. The court properly sustained the demurrer on the ground that, in substance, the bill prayed for a recovery of money for the damages sustained by plaintiffs resulting from the deceit practiced and the breach of contract by defendant, but instead of certifying the ease to the law side of the court dismissed the bill.

Where complainant has a full, adequate and complete remedy at law by way of recovery of damages, equity will not grant specific relief: Dech’s App., 57 Pa. 467; Smaltz’s App., 99 Pa. 310; Blood v. Crew-Levick Co., 171 Pa. 339; Hogsett v. Thompson, 258 Pa. 85. Although the plaintiffs aver fraud in the procurement of the contract, this, of itself, is not sufficient to take the case out of the rule that jurisdiction in equity will not be taken if there is adequate remedy at law: Edelman v. Latshaw, 159 Pa. 644; Johnson v. Swanke, 128 Wis. 68, 107 N. W. Repr. 481, 5 L. R. A. N. S. 1048. “No one, for instance, would think of filing a bill in equity in case of a fraudulent warranty on the sale of a horse or of a deceit in the sale of a bale of goods”: Bispham’s Equity, 10th ed., section 200, page 341. Equity will not assume jurisdiction where the relief sought is merely compensation in damages: Edelman v. Latshaw, supra.

Under the application of the familiar principle of which the authorities cited afford illustration, the court below properly sustained the demurrer, but, in doing so, it should have followed the practice provided by the Act of June 7, 1907, P. L. 440. That statute provides, *245section 2, “If a demurrer or answer be filed averring that the suit should have been brought at law, that issue shall be decided in limine......If the court shall decide that the suit should have been brought at law, it shall certify the cause to the law side of the court, at the costs of plaintiff.” On appeal (section 3) “after a decision upon the merits, [if] the question whether the suit should have been brought at law......is so raised, and the decision of the appellate court is that the suit should have been brought at law, it shall remit the cause to the court below, with directions to transfer it to the law side of that court, all the costs in the cause [in that event] to abide the final determination thereof in the court of law.” The proper practice is to certify the cause to the law side of the court; Minnich v. Kauffman, 265 Pa. 321; Kramer v. Slattery, 260 Pa. 234, 242; — not to dismiss the bill and certify the cause: Meenen v. Negley, 276 Pa. 5, 7.

The question whether the suit should have been brought at law, having been properly raised in the court below and our opinion being (as was that of the chancellor) that it should have been so brought, but the cause not having been certified to the law side following the course of proceeding prescribed by the statute, we are compelled to reverse the decree dismissing the bill and to remit the cause to the court below, with directions to reinstate the bill and to certify the cause to its law side, all costs in the court below to' be paid by plaintiffs and all costs in this court to abide the final determination in the court below.