Griswold v. Gebbie

• Decision Date: 13 May 1889
• Docket Number: 105
• Citation: 126 Pa. 353,17 A. 673
• Parties: ELIZA T. GRISWOLD v. GEORGE GEBBIE, ET AL
• Court: Pennsylvania Supreme Court

17 A. 673

126 Pa. 353

ELIZA T. GRISWOLD v. GEORGE GEBBIE, ET AL

No. 105

Supreme Court of Pennsylvania

May 13, 1889

Argued March 28, 1889

ERROR TO THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY.

No. 105 January Term 1889, Sup. Ct.; court below, No. 276 March Term 1887, C.P. No. 2.

On April 25, 1887, George Gebbie and Mary J. Gebbie, his wife in right of said wife, brought case for deceit against Eliza T. Griswold. Issue.

At the trial on February 16, 1888, the facts shown upon which the plaintiffs sought to recover were in substance as follows:

William A. Griswold, the husband of the defendant, died in 1881. Desiring to dispose of a country place she owned in her own right, she consulted with a Mr. Strong of New York, her husband's friend and business associate, and at his suggestion her brother-in-law, John W. Griswold, was asked to see a real estate broker and have the place offered for sale. In the spring of 1882, Mr. Griswold called upon one Everly, a real estate broker, and placed the property in his hands for sale. Mr. Everly advertised the property for sale in the city papers, describing it as a "country seat of seven acres" near to Darby station. Mr. Gebbie saw the advertisement and called upon Mr. Everly who showed him photographs and gave him a printed circular in which the property was described in eloquent terms and said to consist "of nearly seven acres of land." At the interview with Mr. Everly, Mr. Gebbie asked as to the price of the property and was told to go and see it. Accordingly Mr. and Mrs. Gebbie visited Darby and there met John W. Griswold, who showed them over the place, and in a conversation hereinafter given, told of its acreage. A few days afterward an offer of $24,000 for the place as it stood was made and accepted. The price was subsequently made $23,000, by the omission of a carriage from the purchase, and on May 16 1882, a contract was signed by which the defendant agreed to sell the property, known as Maple Terrace, including certain articles of personalty, for the price last stated. This contract did not mention the acreage of the place. On June 15, 1882, the defendant met the plaintiffs for the first time, when she executed and delivered her deed to Mary Ann Gebbie, and received $12,000 of the purchase money and a mortgage for the balance. The deed then delivered described the property by courses and distances but did not disclose its acreage. The vendees immediately went into possession.

In March, 1887, a line of the B. & O.R. Co. was run near the front gate of the property, and in the proceedings to assess the damages resulting, a survey became necessary, when for the first time, as was claimed, the purchasers ascertained that while the property was correctly described in their deed, as to courses and distances, the true acreage within the lines was but four and two tenths acres.

Milton C. Work, a witness called for the plaintiffs, testified that at the time of the dispute between the railroad company and Mr. and Mrs. Gebbie, in relation to the assessment of damages, he called upon the defendant and asked her if she remembered the quantity of the land, and she said she did not; that he asked her if she had seen the circular, and she said she had; that he did not think she stated by whom it was prepared, but she said she had given it to parties who talked about buying the property, and her agent also had done so.

George Gebbie, one of the plaintiffs, testified that at his interview with Mr. Everly, he was told that Mr. John Griswold would show him the place: -- that if I did not find him there I should find him at the mills in Darby. I went there and found Mr. John Griswold on the lawn of the place. He showed me through the house and through the grounds; and in the garden, I said, "This circular says 'nearly seven acres;' the advertisement says 'seven acres.'"

Objected to, as to any statement of what passed between the witness and Mr. John Griswold.

By the court: Objection overruled; exception.

Q. Did you exhibit that circular to him? A. No; I don't think I did. I referred to the circular and the advertisement. I said one said seven acres positively, and the other nearly seven acres. I asked which was correct. He said, "There is rather over than under seven acres." I asked him the value of land in the neighborhood, and he said land was selling there at $2,000 an acre. I referred to the eloquence of the circular; I asked, did he get up that circular, and he said, "Yes."

Mrs Mary J. Gebbie testified that Mr. Griswold made similar representations to her on the same occasion.

Adam Everly, called by the plaintiffs to testify as an expert to the value of the land, stated in his preliminary examination that he had been in the real estate business for sixteen years, and had bought and sold a large amount of real estate; was familiar, from his knowledge of the trade, of the value of real estate at Darby in 1882. On cross-examination, he stated that he had not bought or sold property in the neighborhood of the Griswold property within two years either way of 1882; that at the time of the sale he had made careful inquiry and found that a sale had taken place at $2,000 per acre in the immediate vicinity, and upon that sale he had based his opinion as to the value of this land; that he could not recall the name, and had no personal relation to the transaction. To the court he stated that he had been engaged in and was acquainted with sales of rural properties in the neighborhood of Philadelphia, and had sold the Fallon property within a reasonable distance, perhaps six miles from this; had frequently bought and sold other suburban properties on all the roads in the neighborhood of the city, in every direction, and thought he was competent to speak of values, and was so considered.

Objected to.

By the court: Testimony admitted; exception.

The witness testified that the fair market value for this property per acre in 1882 was $2,000.

The defendant testified that she had not given Mr. Everly any information about the property, and had not seen him until after the offer was accepted; that she never saw either Mr. Everly's advertisement or the circular, and prior to the beginning of the suit had no knowledge that any representations had been made to Mr. Gebbie with reference to the acreage of the property; that she had heard some member of her family say that her brother-in-law had written a circular descriptive of the property, and that was all she knew about it. She also contradicted the testimony of Mr. Work, and testified that she never had any knowledge of the acreage of the property, and did not know that her husband knew the number of acres; it was her own separate estate.

John W. Griswold was not called.

At the close of the testimony, the defendant's counsel requested the court to charge the jury that under all the evidence in the case the verdict should be for the defendant.

This point, the court, HARE, P.J., declined, and charged the jury as follows:

After Mrs. Griswold had put the matter in Mr. Strong's hands, he had a conversation with John Griswold, in which John Griswold suggested the properiety of employing Adam Everly, who was a real estate broker, to effect the sale. Mr. Strong had an office here, but his residence was in New York, and did not find it convenient to attend to the business himself. He therefore assented readily to John Griswold's idea, and gave him a more general authority, because he said, "Employ two or three brokers if necessary," and from that time forth he dismissed the same from his mind, or at least took no further steps in regard to it, as Mrs. Griswold had, as she declares, dismissed it from her mind.

John Griswold then proceeded, in the execution of this power, to call upon Mr. Everly and to acquaint him with the situation of the property, giving him a circular which he had prepared, which contained a minute account of the property, among other things stating in explicit terms that the ground contained seven acres.

One of the questions in this case may be as to John Griswold's authority to do this much. It is not denied by the defendants, indeed it is a part of their case, or at least of their testimony, that John Griswold was authorized to take whatever steps were necessary, or to employ a real estate agent, to effect the sale; but it does not necessarily follow that an authority to select a real estate agent to bring about a sale will authorize the agent to take measures to effect such sale. At the same time, when a man is employed to do a thing, it is generally implied, or may be so, that he is to do what is requisite to render his employment effectual and, without stating any proposition of law, [it is a question for the jury to consider whether, if a man is told to select a real estate agent and to employ him to sell a piece of property, that does or does not carry with it the duty to give a description of the property to the person so employed.] To some extent it would seem to be so, because he must necessarily say where the property is situated, as, for instance, whether it is in the town or the country. It would not do to call upon a broker, and say, "I want you to sell a house," without saying where the house was. Some description, therefore, must be given, and the doubt is as to the extent. I suppose it is a matter of inference or for consideration by the jury, whether a person who is authorized to select a broker and employs him to sell a house, may not state the number of stories, whether it is of brick or stone, and give him some general idea, because otherwise the broker would be comparatively uninformed of what might be material for him to know, in negotiating the sale. I do not say that this would be...