89 Pa. Super. 122 | Pa. Super. Ct. | 1925
Argued October 28, 1925. Plaintiff contracted to buy a dwelling in the City of Philadelphia and employed defendants, who are real estate agents, to secure a mortgage for part of the purchase money and make arrangements for the settlement within the time limited in the agreement of sale. Through the negligence of the defendants the sale was not consummated and plaintiff lost her down money and the advantage, if any, of her bargain.
She brought this action in assumpsit to recover the losses she had thus sustained through the defendants' neglect.
The thirteenth paragraph of her statement of claim contained the following averment or averments: "Plaintiff avers that the price of $4700 which she was to pay for the premises hereinbefore mentioned was far below $5500 which was the market value of the premises at the time fixed for delivery of the premises to her, in accordance with the terms of the agreement hereto attached, as `Exhibit A.'" Defendants' reply to this paragraph in their affidavit of defense was, "Denied."
On the trial the learned court below admitted in evidence these paragraphs of the statement of claim and affidavit of defense as a conclusive admission that the value of the property at the time fixed for settlement was $5500; and refused defendants' offers to prove the market value by witnesses. In our opinion this was error.
The thirteenth paragraph of the plaintiff's statement did not comply strictly with section 5 of the Practice Act, 1915 (P.L. 483) which provides that every pleading shall contain, and contain only, a statement in a concise and summary form of the material facts on which the party pleading relies and that each paragraph shall contain but one material allegation. The paragraph did not aver directly that the market *124 value of the premises at the time fixed for settlement was $5500; but "that the price of $4700 ...... was far below $5500, which was" etc. The reference to market value was only a clause subordinate to the one concise averment of fact which the paragraph contained.
But apart from such technical considerations, we are of opinion that the nature of the claim and the character of the damages demanded were such as to prevent the general denial in the affidavit of defense from operating as a conclusive admission of the market value of the property, thus inferentially averred in the statement of claim. While the action was founded on contract and therefore correctly brought in assumpsit, it nevertheless sounded in tort, could have been brought in trespass [case]: Reeside's Exr. v. Reeside,
In Corry v. Penna. R. Co.,
The fourth, fifth, eighth and tenth assignments of error are sustained. We find nothing of merit in the rest. The judgment is reversed and a new trial awarded. *126