92 Pa. Super. 422 | Pa. Super. Ct. | 1927
Argued November 16, 1927. The parties to this suit entered into a written agreement for the sale of a house and lot. Five hundred dollars ($500) was paid as down money to be retained by the vendor as liquidated damages should purchaser default. The agreement was never consummated, the purchaser declaring that there were representations made by the vendor as to conditions of the property which relieved the purchaser from performance of the *424 contract and entitled her to recover back the down money. This suit was brought for that purpose.
Anna M. Zitek, the plaintiff, testified that she desired to purchase the property in question and went to see Mrs. McCabe, the owner, "I asked her if I could see the house. She says, no, there was a tenant in the house. I asked `Well, is it in good condition?' She says, `Yes, it is in perfectly good condition,'" and some more in repetition of the statment. After the agreement was executed, Mrs. Zitek went through the alley past the house she had purchased and saw that the fence in the back part of the property was falling over and the gate was falling in and the boards were loose. One could see spaces between them. On the second story of the house there was a space about twenty inches long and six or eight inches wide where the clapboards were out and you could see the plaster and the slats were out of four shutters; the fancy work on the front door was pulled off and the door bell had been pulled out. Upon cross-examination, Mrs. Zitek stated that she lived on the same street upon which the house in question was situated, that the house she occupied was on the opposite side of the street "six or seven houses below the house No. 76 and in the same square." The agreement of sale was procured by Mrs. Zitek who brought the agreement to the vendor to sign. This is in substance the plaintiff's proof. She claims that the representations made constituted fraud and were the inducements that led her to enter into the agreement and when discovered to be untrue gave her the right to rescind. The jury found for the plaintiff but judgment was entered for the defendant n.o.v.
The inducements were made five days before the written agreement was entered into. The representations were not definite. No particular statements as to any part of the premises. Merely a general assertion *425
that the house was in good condition and this carried with it no guarantee. It was rather an expression of opinion. The request by the vendor that the purchaser should not inspect the premises because they were rented did not prevent a casual inspection of their exterior and all the defects complained of were ascertainable readily by merely looking at the house as one was passing. The opportunities to see the outside of the house were common to both parties and as stated before, the plaintiff lived near the premises which she sought to buy and the plaintiff had abundant opportunity to see the outside of the building she desired to purchase before closing the transaction. She had five days in which to walk across the street and satisfy herself as to the correctness of defendant's conclusion that the house was in good condition. There is no relation of confidence, both parties having equal means of information. Graham v. Pancoast,
The judgment is affirmed.