159 A. 870 | Pa. | 1932
Argued January 7, 1932. This action in assumpsit was brought to recover money paid on account of the purchase price of real estate. On January 29, 1929, by written agreement, plaintiff agreed to buy and defendant to sell a lot or piece of ground at the southwest corner of Forty-sixth Street and Westminster Avenue, in the City of Philadelphia. The lot was described in the agreement as having a frontage on Forty-sixth Street of "57 feet 8 1/2 inches, to an alley." It had in fact a frontage of only 54 feet 8 1/2 inches, to a three-foot unopened alley. The defendant tendered a deed which described the property as "57 feet 8 1/2 inches to the south side of an alley," which included the three-foot alley, and the deed was refused by the plaintiff on the ground that it did not comply with the terms of the *438 agreement. The defendant denied this allegation, insisted that plaintiff had been tendered the exact property which he had purchased, and set out that a mutual mistake had been made in the description of the property in the agreement. The trial court held that the pleadings and testimony raised a plain question of fact, and submitted it to the jury.
From the testimony the jury could properly have found the following facts: When the parties met to execute the contract the defendant presented a written agreement in which the lot was described as "54 feet 8 1/2 inches to an alley," which was correct. One Troy, a broker who was acting as plaintiff's agent, because of a record which he claimed to have seen in an assessor's office, said, "Well, you have more than that," and defendant replied, "If I have, all right, you can have it. I want to sell you all I have; let us look at the deed." They did look at the deed, in which the property was described as "57 feet 8 1/2 inches to the south side of an alley," which was the farther line of the alley. The agreement was then changed by striking out "54" and inserting "57," which made it read "57 feet 8 1/2 inches to an alley," the parties and Troy by mistake overlooking the fact that the deed read "to the south side of an alley." The plaintiff was present and knew he was purchasing all the ground defendant had, and he knew at the time he made the agreement that an unopened three-foot alley adjoined the lot. He bought the property to build an apartment house upon it. After the agreement of sale he tried to have the alley vacated so that he could include it in his lot and build upon it. Although he soon learned that the description in the agreement was not accurate, he raised no objection to it until after his efforts failed to have the alley vacated. Three months and a half after making the agreement, when he knew all about the mistake in the description of the property, he voluntarily made an additional payment of $1,000 on account of the purchase price. The trial court *439 held the whole case turned on whether plaintiff knew at the time he made the agreement that the alley was included in the 57 feet 8 1/2 inches, and submitted that question for determination to the jury, which decided the question in favor of defendant. After judgment was entered on the verdict, the plaintiff appealed, his motions for new trial and judgment n. o. v. having been refused.
The plaintiff has assigned as error the action of the lower court in permitting the introduction of parol evidence to show the real intention of the parties. There is no merit in this contention. It is well settled that the parol evidence rule does not bar showing that, as a result of mutual mistake, a written agreement does not express the true intention of the parties, and that as it stands neither party had assented to it. "It has long been held in Pennsylvania that parol evidence, if sufficient, may be used to show fraud, accident or mistake in the making of a contract": Cridge's Est.,
It is true, as plaintiff claims, that parol evidence having been used to prove the true agreement, the whole contract, in legal contemplation, became parol (Safe Deposit Trust Co. v. Diamond Coal Coke Co.,
The plaintiff relies on Sands, Herdic Co. v. Arthur,
In what we have said, we have considered all the assignments of error which have merit. On the view we have taken, it is unnecessary to discuss the assignments relating to the refusal of the trial judge to admit evidence concerning plaintiff's alleged damages. As plaintiff was not entitled to recover, being himself the one in default, he suffered no damages.
Judgment affirmed. *442