LaCourse v. KieselLaCourse v. Kiesel
- Reporters:
- , ,
- Before:
- Ladner
Opinion by
Mr. Justice Ladner,From the findings of the learned chancellor supported by adequate evidence and approved by the court en banc, we state the following facts: The defendants, Anna M. Kiesel, William Kiesel, Jr., and Ruth R. Kiesel, hereinafter referred to as individual defendants, being owners of premises 101 Montgomery Avenue, Bala Cynwyd, Pa., engaged Louis Traiman Auction Company of Pa., hereinafter referred to as Traiman Company, to act as their agent in advertising and selling their property at public auction. Traiman Company prepared a handbill advertising the property which contained among other statements, the following: “An unusually desirable property, ideal as a private home, excellent for a professional man, also splendid for apartments which would bring in a handsome income in addition to providing beautiful living quarters for the owner.” William Kiesel, Jr., one of the owners, informed Traiman Company that the property was zoned R-5 which permits apartments, that there were apartments in the property and that other properties in the area, including the adjoining property were apartment houses. The handbill prepared by Traiman on this information, among others, was read to prospective bidders by representatives of Traiman at the auction sale held June 29, 1948, on the premises.
The plaintiffs, A. J. LaCourse and Benjamin M. Snyder, Jr., attended the auction sale, had examined the handbill advertising the sale and heard it read by.
Thereafter the plaintiffs applied to the Commonwealth Title Company of Philadelphia, and from the information certificate sent them learned for the first time that the restrictions prohibited the use of the property other than as a single residence. Prior to the receipt of this information the plaintiffs had engaged an architect to prepare plans for the conversion of the property into apartments, which services were discontinued later, because of the restriction and a bill for $215 paid him. Upon learning of the restriction plaintiffs promptly offered to rescind the agreement of sale or to allow the defendant owners additional time to remove the restrictions. Defendants were not able to have the restrictions removed and called upon plaintiffs to make settlement subject to the restriction. Plaintiffs then brought a bill in equity against the defendants for cancellation of the agreement of sale and return of
The appellants argue first that the representation in the auctioneer’s circular read to the bidders was not a material misrepresentation. The learned court held that it was material. We find no difficulty in agreeing with the court below. The language of the circular was equivalent to a statement that there were no legal obstacles in the way of the use of the property being sold for apartments. Any fair-minded person would naturally assume from the statement that the property was “splendid for apartments which would bring in a handsome income in addition to providing living quarters for the owner,” that the restrictions mentioned did not prohibit such use. Otherwise, neither the auctioneer nor the sellers would have been justified in making the statement complained of. Counsel for the appellants argues that neither the owners nor the auctioneer knew that the restrictions prohibited said use and therefore made the misrepresentation innocently. But the owners were bound to know what the restrictions provided. Moreover, whether the auctioneer or the owners
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that the representation was false has been repeatedly held in this jurisdiction to be a matter of ho consequence. A vendor has no right to make such a statément of which he has no knowledge:
Braunschweiger et al v.
Waits, 179 Pa. 47, 36 A. 155 (1897);
Jack v.
Next the appellants’ learned counsel argues there was no evidence to warrant the chancellor’s finding that the plaintiffs relied on the misrepresentation. To this argument it may be answered that not only is it to be presumed from the very materiality of the misrepresentation that the person deceived relied upon it (Restatement, Contracts, Sec. 479) but there is abundant other evidence to support the chancellor’s conclusion. Both plaintiffs testified they discussed with William Kiesel, Jr., the adaptability of the property into apartments and Mr. LaCourse testified that Mr. Traiman, Sr., stated to him just before the auction commenced that the property “could be readily converted into 6 beautiful apartments.” To which may be added the fact that plaintiffs engaged an architect, John B. Thompson, August 6th or 7th, to prepare plans for converting the property into apartments, which, according to the testimony of the title officer was about a month before the information certificate was issued from which the plaintiffs learned of the restrictions against such use.
Next it is argued that because there was no “clear indubitable proof” that defendants had actual knowledge of the restrictions limiting the use of the property to a single residence the defendants were innocent of fraud and plaintiffs without showing fraud could not rescind the contract of sale because defendant could not be restored to status quo. The defendants here were
Finally it is argued that the plaintiffs, having signed a written agreement of sale, their evidence of the material misrepresentation is inadmissible to contradict the writing because of the parol evidence rule as laid down in
Gianni v. Russell and Co., Inc.,
281 Pa. 320, 126 A. 791 (1924). The learned chancellor was correct in ruling that the purpose of the evidence here was not to alter or vary the terms of the written instrument, but to strike the writing down just as though it had never been in existence. In this he followed
Suraci v. Ball,
160 Pa. Superior Ct. 349, 51 A. 2d 404 (1947), where Judge Reno said at page 353, “ ‘It is always competent to aver and prove that an engagement in writing was induced by fraudulent oral representations of material facts that affect the consideration.’ ” In so ruling he followed
Feuerstein v. New Century Realty Co.,
304 Pa. 271, 275, 156 A. 110 (1931), where the matter was definitely settled. See also
Merritz v. Circelli,
361 Pa. 239, 242, 64 A. 2d 796 (1949);
Zettlemoyer v. Bloch,
329 Pa. 205, 198 A. 80 (1938);
Sutton v. Morgan,
158 Pa. 204, 27 A. 894 (1893). And in
Ohlbaum v. Mayer,
285 Pa. 260, 131 A. 858 (1926), the
These cases, and others which may be cited to the same effect, the appellants’ counsel seeks to distinguish because the representations there made were referred to as “false and fraudulent,” and that as in this case there was no fraud, the principle does not apply. But the word “fraud” is a generic term which embraces a great variety of actionable wrongs. As hereinbefore pointed out the fraud may be actual or constructive, accordingly as it is knowingly or innocently made, 37 C. J. S. p. 209, and where, as here, it is made by one having means of knowledge at hand, he cannot be heard to say he did not know what he should have known. Misrepresentation under such circumstances is fraud in law as well as in equity.
The so-called “integration clause” which appears on the reverse side of the agreement does not by its terms preclude proof of the misrepresentation here complained of because such representation does not “contradict, vary or add to the terms of the agreement.” The evidence thereof was admissible to justify the rescission.
At the bar the learned counsel argued also that the restrictions against use of the property for apartments are no longer effective because they have become obsolete by reason of the changed character of the immediate neighborhood. We are well aware of the fact that it has been held that a court of equity may refuse to enforce restrictions when they become obsolete or cease to be of any advantage to those for whose benefit they were imposed due to the resistless evolution of time:
Henry v. Eves,
306 Pa. 250, 255, 159 A. 857
Decree affirmed at costs , of appellants.