Littler v. Dunbar

• Decision Date: 26 June 1950
• Citation: 365 Pa. 277,74 A.2d 650
• Parties: LITTLER et al. v. DUNBAR et al.
• Court: Pennsylvania Supreme Court

74 A.2d 650

365 Pa. 277

LITTLER et al. v. DUNBAR et al.

Supreme Court of Pennsylvania

June 26, 1950

Argued May 25, 1950

Appeal, No. 82, March T., 1950, from judgment of Superior Court No. 118, April T., 1949, reversing judgment of Court of Common Pleas of Allegheny County, July T., 1946, No. 513, in case of Margaret Lanzetta Littler, Exrx., Estate of Carl W Littler, Deceased et al v. Everett B. Dunbar, trading as Acme Real Estate Company et al. Judgment reversed; reargument refused August 16, 1950.

Same case in Superior Court: 166 Pa.Super. 271.

Trespass for fraud and deceit. Before PATTERSON, J. Compulsory nonsuit entered as to defendant Trilli & Dunbar Company; verdict for plaintiffs and against defendant, Dunbar, and judgment entered thereon. Defendant, Dunbar, appealed to the Superior Court, which reversed the judgment of the court below. Appeal by plaintiffs to Supreme Court allowed.

The judgment of the Superior Court is reversed and the record is remitted to the court below with directions to enter judgment for the plaintiffs on the verdict.

Louis Vaira , for appellants.

John A. Metz, Jr., with him John A. Metz and Metz & Metz, for appellees.

Before DREW, C.J., STERN, STEARNE, JONES and BELL, JJ.

OPINION

MR. JUSTICE ALLEN M. STEARNE

The appeal is from the judgment of the Superior Court, reversing the judgment of the court of common pleas of Allegheny County. The suit is in trespass for fraud and deceit. Defendant is a real estate broker. The fraud and deceit charged by plaintiffs consists of alleged misrepresentations of defendant's agent in connection with a contract for the sale of real estate. A trial on the merits resulted in a verdict for the plaintiffs for the amount of the down money and interest, which the court below sustained. On appeal to the Superior Court the judgment was reversed in a unanimous opinion by Judge HIRT, 166 Pa.Super. 271. The basic reason for the reversal is stated in the opinion, at p. 273, as follows:

"Under the Pennsylvania rule a principal is not liable in deceit for his agent's false representations where he has not authorized nor participated in them nor knowingly permitted the agent to make them. Proof of scienter on the part of the principal at the time of the misrepresentation is an essential part of the plaintiffs' case."

It was further stated in the opinion, at p. 274: "The plaintiffs were within their rights in rescinding the contract induced by the false representations of defendant's agent. Sutton v. Morgan et al., 158 Pa. 204, 27 A. 894; Meyerhoff v. Daniels, 173 Pa. 555, 34 A. 298. If then they had sued in assumpsit, on the theory of money had and received, they would have brought themselves squarely within the rule of Ohlbaum v. Mayer et ux., 285 Pa. 260, 131 A. 858 and would have been entitled to recover against this appellant since he benefited by his agent's fraud and kept the hand payment."

We are in complete accord with the opinion for the reasons given and cases cited.

But in Lichow w. Sowers, 334 Pa. 353, 6 A.2d 285, this Court held that under the Act of May 10, 1871, P.L. 265, the form of an action is amendable at any stage of the proceedings. Mr. Justice HORACE STERN said, p. 355: "Probably a suit in assumpsit would have been more appropriate, but the form of action is amendable at any stage of the proceedings: Act of May 10, 1871 P.L. 265; New York & Pennsylvania Co. v. New York Central R.R. Co., 267 Pa. 64, 76, 77."

See also Joynes to use v. Pennsylvania Railroad Company, 234 Pa. 321, 83 A. 318; New York & Pennsylvania Co. v. New York Central R.R., 267 Pa. 64, 110 A. 286; Miners Savings Bank of Pittston v. Naylor, 342 Pa. 273, 20 A.2d 287; Montgomery, Admr., v. Keystone Mutual Casualty Company, 357 Pa. 223, 53 A.2d 539; Bell Telephone Company of Pennsylvania v. Baltimore & Ohio Railroad Company, 155 Pa.Super. 286, 38 A.2d 732. Cf. Pennsylvania Rules of Civil Procedure, Rule 1033.

We deem it unnecessary to remit...