Sacks v. Schimmel

3 Pa. Super. 426 | Pa. Super. Ct. | 1897

Opinion by

Beaver, J.,

The plaintiffs brought an action of trespass against the defendant, to recover damages sustained by them in consequence of an alleged deceit practiced by the defendant, by reason of which the plaintiffs were induced to take a lease, evidenced by writing, and enter into possession of certain premises in the city of Philadelphia. Both of the plaintiffs made an examination of the premises. They informed the defendant of the character of their business, which was the carrying on of a millinery establishment, and that they desired to occupy the premises for that purpose. The business, like the material with which it deals, consisting largely of show; they made special inquiry as to the bulk windows, and, as they allege, were informed that the premises were in good condition, and that a new roof had been put upon the windows in which their goods were to be displayed. As to this representation defendant bad knowledge, — the plaintiffs had none. If false, and they acted upon it, it was undoubtedly such a deceit as would sustain this action. It is to be observed that the action is entirely independent of and in no way based upon the lease made subsequent to the representations which were the inducement to its execution. There is no claim under it. There is no attempt to reform it. The plaintiffs’ case could have been made out without any reference to it. It was offered in evidence by the defendant, and must undoubtedly be held to be the agreement of the parties as therein expressed, as to which there was no disagreement or dispute. There is undoubtedly a clear distinction between an .action like the present, based upon deceit, which is the inducing cause of a written agreement, and an action for damages under the agreement itself. We are not disposed, however, to relax the rule that parol evidence as to a fraud in the making of a written agreement, the object of which is to change the legal effect of such a writing, must be clear, precise and indubitable, that is, the evidence of fraud relied upon for recovery independently of a written contract, when such writing is in existence, must be of the same character as if it were relied upon to reform the contract. ■ Is the evidence in this case of such a character? '

Both the plaintiffs testify that in a personal interview with the defendant prior to the execution of the lease, they informed him as to their business, and that they required bulk windows for the display of their goods; that the house was represented by him to be in good condition, and that the bulk windows had a new roof on them, and that they were in perfect condition. That the defendant understood the business in which the plaintiffs were to engage is shown by the lease which he offered in evidence, in the second clause of which it is provided: “ The lessee shall not occupy the demised premises otherwise than as a millinery store, nor shall tl^ lessee assign this lease nor under-let the premises or any part thereof.” The son of the plaintiff, who was a conveyancer and acted as his agent, says in his examination in chief that at the time of. the execution of the lease “the question was raised whether the property was in good order, and the reply was that it was in good order, which it was at the time.” There is further corroboration of the plaintiffs’ contention in the fact that, although under the terms of the lease the lessee was bound to keep the demised premises in good condition during the continuance of the lease, the defendant invariably, after complaint as to the condition of the roof of the bulk windows, sent mechanics to make the repairs at his own expense. The evidence in regard to the character of the roof of the bulk windows is not uncertain. It was not new. On the other hand, it was in bad condition. After the plaintiffs removed from the premises, and before another tenant occupied them, a new roof was put upon them by defendant. The plaintiffs took possession of the premises January 1, 1894, and within that month their entire stock, displayed in the bulk windows, was destroyed by water coming through the window, caused as is alleged, by defects in the roof. The experiences of the first month of the plaintiffs’ tenancy were repeated on three or four other occasions, of which the details are given fully in the evidence. We think the evidence was sufficient to carry the case to the jury, without any relaxation of the rule as to the character of the proof necessary to establish such fraud as will change the legal effect of a written instrument. Was there error as to the manner in which this evidence was submitted to the jury? We think not. What we have said sufficiently disposes of the second and third assignments of error.

As to the first, fourth and fifth assignments, the appellant’s argument is that, inasmuch as the lease which he gave in evidence is signed by but one of the plaintiffs, there can be no recovery by them jointly. The reply to this is that the plaintiffs do not base their right to recover upon the lease. There is evidence that they carried on the business jointly; that both contributed to its capital and shared in the profits. The representations upon which they base their action for deceit were made to both of them. Both relied upon these representations, and jointly pursued the business which was carried on in consequence. We see no error, therefore, in the affirmance of the plaintiffs’ points and the disaffirmance of the defendant’s third and fourth points, as contained in the fourth and fifth assignments of error. Wolfe v. Arrott, 109 Pa. 478, although different in form and as to its facts, fully sustains the general principles herein set forth. We are not called upon to decide what the duty of the plaintiffs was, after the discovery of the deceit practised upon them by the defendant, nor whether there should be a recovery for damages sustained after such a discovery. The question was not raised in the court below, and is not raised in any way here, by any of the assignments of error. All questions raised in the court below upon which the trial judge was requested to pass were properly disposed of, and the judgment is, therefore, affirmed.

Smith, J., dissents.