32 Pa. Super. 385 | Pa. Super. Ct. | 1907
Opinion by
The plaintiff’s action is for damages for breach of a written
“ Phila., April 20, 1905. Received of Mrs. Josephine Glasse $20.00 as a deposit in payment of house No. 704 S. 19th Street, price of house to be $2,400, clear of any encumbrance, insurance included, settlement to be made within two weeks.
“HuC-h Stewart.”
It is admitted that the defendant declined to convey the property on request and the material question raised by the assignments of error is, what is the measure of damages ? The rule is well established that if the vendor make default without fraud the vendee is only entitled to recover the price paid, together with the expenses incurred on the faith of the contract: Dumars v. Miller, 34 Pa. 319; McNair v. Compton, 35 Pa. 23; Rineer v. Collins, 156 Pa. 342; Doyle v. Brundred, 189 Pa. 113; Eberz v. Heisler, 12 Pa. Superior Ct. 388; Stephens v. Barnes, 30 Pa. Superior Ct. 127. This rule applies both to written and parol contracts: Bowser v. Cessna, 62 Pa. 148; Dumars v. Miller, 34 Pa. 319. The application of the rule to the two classes of contracts rests upon different principles but with equal conclusiveness. Where a plaintiff seeks to recover a larger measure of damages it is necessary that he make it appear from the evidence that the defendant practiced fraud, artifice or collusion. And this must have inhered in the original agreement: McNair v. Compton, 35 Pa. 23; Rineer v. Collins, 156 Pa. 342. Fraud is not presumed. It must be established by sufficient evidence. The burden of proof is, therefore, on the plaintiff to show the fraudulent conduct which entitles him to the value of his bargain. We do not find in the evidence brought up with the record anything from which an inference of fraud could be legitimately drawn. The defendant’s explanation of his refusal to deliver a deed was that there was a mistake in regard to the property to be conveyed; that the property had been derived from his father and was subject to a ground rent; that he understood the subject of the contract was the house and that upon learning that the plaintiff claimed to have bought the whole property he promptly notified her of the misunderstanding; notwithstanding which the plaintiff
As there is no dispute in regard to the amount of money paid it is unnecessary to reverse the judgment. Under the authority vested in this court by the 9th section of the act of June 24, 1905, the judgment is so amended that it shall be a judgment in favor of the plaintiff for $20.00, with interest from April" 20, 1905; and as thus amended the judgment is affirmed.