15 Pa. Super. 513 | Pa. Super. Ct. | 1901
Opinion by
The defendant, by written agreement made in January, 1898, purchased from the plaintiff and his partner a lot of ground. Settlement was agreed to be made on April 10, 1898. On the land was a house in process of construction. The written agreement refers to the land as “ the middle lot of three lots on the property of the Robert Stewart estate, recently built upon by the parties of the first part,” etc. The only stipulation in the agreement respecting the house is, “ The house on the above described lot to be completed before date of settlement.” The defendant went into possession toward the end of March. On April 20, 1898, the settlement took place. A deed was then delivered and accepted for the property and purchase money paid with the exception of $250. For this amount a due bill was given by the defendant, in this form: “ Due Charles H. Stewart $250, balance of settlement money for purchase of house at St. David’s, Penna., payable when all repairs to chimney and brickwork, painting of porch, grading and erection of front fence are complete.”
The appellant complains that the defendant was permitted to show that representations and promises were made to him when the contract was signed, that the house in process of con
In the case before us, the contract to convey land and the contract to complete the building were, in a sense, severable. The contract to convey was performed by the delivery of the deed; but the contract to complete was not. While the acceptance of the deed was evidence of conceded completion, yet it was not conclusive of the fact of completion in the manner agreed by the parties. The evidence submitted by the defendant supplied, in part, the terms of the contract relating to the manner and character of completion, and, in effect, was scarcely more than expressing what the law implied. For the purpose for which it was offered it was sufficiently clear and precise. It was substantially uncontradicted, and consisted not wholly of the defendant’s own testimony. It was to the effect, that the work done when the defendant bought was represented to be of the best character and quality, and that the work to be done was agreed to be performed in a workmanlike manner.
But further than this, an oral agreement given before or at the time of the sale of real estate, or afterwards, in respect to indemnity for failure of title is not merged in a deed subsequently accepted. In Close v. Zell, 141 Pa. 390, this language is used: “It thus appears from the cases now cited that, whether the agreement for indemnity was made before or at the time of the sale, or afterwards, the right to recover indemnity in an action on the special agreement is sustained, and that whether the agreement was by writing or in spoken words is a matter of indifference. Such an agreement is not merged in the deed if made before or at the time of the deed, and is not destroyed by a covenant of general warranty in the deed if made thereafter.” If then oral agreements respecting the title are not merged in the deed, how much greater latitude should be given to the introduction of proof of oral agreements respecting not matters involving title, but obligations assumed collateral to the conveyance of title.
It is, however, further contended that the allegation of the use of bad material and workmanship in the plastering and drainage was not made until the defendant had been a number of weeks in possession, and that this delay estopped him from setting up the defects as a defense. The character of the defects was such as not to be visible. The defects did not appear immediately. They were of a serious and damaging character. In this action, regarded as a suit for the balance due for completing the building of a house, and the bad workmanship and material having been discovered before the balance was paid, it was within the right of the defendant to set up the failure to perform the alleged stipulations of the contract for completion.
It is further contended that by giving the due bill in suit, the defendant is estopped from setting up the defense alleged. This is based upon the allegations that the defendant when he gave the due bill, had already discovered some defects in the plastering and drainage, and that he should have included these matters, if they existed, among the things to be performed before payment should be required of the due bill; and that the
The defendant contends that the defects in construction in the case before us, were such as to amount to a fraud on him. There is foundation for this contention. When the plaster from the walls and ceilings in nearly every room in a house falls in large quantity about the ears of the occupants within a few months of the time of construction, without being attributable to any unusual cause, and the plaster itself is shown to have been used after notice to the builder by his contractor that it was unfit, the facts go far toward showing a fraud committed in the making of the representations asserted in this case, and open the door to the testimony admitted respecting such representations: Wolfe v. Arrott, 109 Pa. 478; Commonwealth to use v. Julius, 173 Pa. 322; Frederick v. Campbell, 14 S. & R. 293.
We are of opinion that no error was committed in the trial below and that the judgment should be and it now is affirmed.