Keystone Mausoleum Co. v. Salzman

72 Pa. Super. 437 | Pa. Super. Ct. | 1919

Opinion by

Trexler, J.,

The defendant’s testator entered into a written agreement to purchase ten crypts in a mausoleum to be erected in Grove Hill cemetery, “plans and specifications of which are now on file with the cemetery trustees.” A demand for payment is met with an allegation of fraud in the procurement of the contract. It is alleged that the agent taking the subscription represented that the building was to be constructed of “solid granite, marble and bronze” and that subsequently it appeared that concrete was extensively employed, and that instead of a building constructed of these materials they were largely used merely as veneers. In support of his contention, the defendant sought to introduce an advertisement inserted by the plaintiff: in the local newspapers in which it is stated that the building was to be constructed of “solid granite walls, bronze doors, solid granite columns, absolutely sanitary, no putrefaction, no decomposition.”

The court excluded this offer, it does not appear on the minutes for what reason as the objection was general but in the argument it is stated that the court regarded these advertisements as mere “puffing.” We all think this was error. If these statements had been made directly to the defendant we do not think that there would be any doubt that they should have been admitted. As he had read the advertisement, why should he not be entitled to rely upon them as much as upon mere verbal statements. Had these words been inserted in a circular or catalogue, would they not have been admissible? They were not mere words of commendation, not mere expression of opinion but a statement of facts. A misstatement made by advertisement and by descriptive circulars is evidence of fraud in an action of deceit: Griswold v. Gebbie, 126 Pa. 353. See also Land & Improvement Co. v. Mendinhall, 4 Pa. Superior Ct. 398. A warranty may be predicated of statements contained in advertisements relating to goods; 35 Cyc. 385 and cases cited. The advertisement in question if relied upon by the plaintiff would be proof of the fraudulent procurement of the contract and would also be corroborative of the testimony that the agent had made similar statements.

As the case goes back for retrial we refrain from comment as to whether the testimony admitted at the trial was sufficient to require the case to go to the jury. We cannot anticipate how matters will appear at the retrial, as the quantum and quality of proof may not be the same.

The judgment is reversed and a venire facias de novo awarded.