Sulkin v. Gilbert
| Decision Date | 20 May 1907 |
| Docket Number | 3 |
| Citation | 218 Pa. 255,67 A. 415 |
| Parties | Sulkin v. Gilbert, Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 13, 1907
Appeal, No. 3, Jan. T., 1907, by defendant, from judgment of C.P. Monroe Co., Feb. T., 1905, No. 19, on verdict for plaintiff in case of Louis Sulkin v. William A. Gilbert. Affirmed.
Assumpsit to recover purchase money for land. Before STAPLES, P.J.
The court charged in part as follows:
William A. Gilbert, the defendant, alleges that the fraud committed upon him in this case by the plaintiff was, that at or about the time the negotiations took place relative to the execution of this contract, a blue print was present, the court does not remember whether it was brought there by the plaintiff, or how it got there, but at any rate it was there with the plaintiff and the defendant, and that the defendant asked the plaintiff whether the blue print correctly represented the land to be conveyed, and especially in this respect, as to the distance from the water to an alley on Harrison street, as the court remembers it, about ninety feet, and that the plaintiff said that it did. As the court remembers it, that conversation is alleged to have taken place in the morning, and in the afternoon the plaintiff appeared with the agreement or contract in question, and at the time of its execution this same blue print was there, and that the defendant substantially asked the same question with regard to the location of the creek or water, and that the plaintiff again stated that it fairly represented the situation.
The defendant claims that he wanted this tract for certain particular purposes and especially with reference to the water, and that he afterwards learned that the blue print did not represent truly the location of the water with reference to the contract, and that instead of its being ninety feet from the water to the point on Harrison street, namely, the alley, that there was practically no land there.
We say to you, gentlemen of the jury, that if that testimony was properly corroborated and believed by you, it would be a good defense to a recovery in this action, but as the court remembers the testimony, there was substantially no corroboration of the testimony of the defendant in this case as to this representation relative to the situation of the water in reference to the blue print, and the distance as therein mentioned. There was some little evidence with regard to the blue print, that it was seen in the office when Mr Sulkin was there and there was some evidence about some talk had about distances, but as the court remembers it there was no evidence whatever as to the alleged misrepresentation by the plaintiff as to the situation of the water with reference to Harrison street or the alley that crossed Harrison street.
Crossman testified that about a week after this agreement was made he went down upon this tract of land with Mr. Gilbert and with Sulkin, the plaintiff, and that while some measurements were being taken there, that Mr. Gilbert said to Mr. Sulkin "the land is not here;" that Sulkin at first made no reply, or words to that effect, and that when Mr. Gilbert again repeated it, Sulkin said, "I see it is not." The court holds that this is insufficient in itself to constitute a corroboration. It is too indefinite and uncertain, and it is the opinion of the court in this case that there was practically or substantially no corroboration of the defendant's testimony with regard to this allegation or assertion of fraud, namely, misrepresentation by the plaintiff.
Plaintiff flatly denies the statements by the defendant, and under this condition of the testimony, the defendant relying upon the allegation of fraud to prevent recovery, and this allegation of fraud being strictly confined to his own testimony, which is flatly denied by the plaintiff, the court holds it is insufficient to prevent a recovery in this case, and especially so, gentlemen of the jury, when there is taken into consideration the fact that this blue print was not attached or made part of the contract, although according to Mr. Gilbert's story, it was there at the time the contract was made; that no reference was made to the blue print in the contract which was executed by them, although if Mr. Gilbert's story were believed, the blue print was there, and its reference to the tract of land was talked over. This reference of the court to the blue print refers to this particular matter which it was alleged was the misrepresentation or fraud in connection therewith.
[This additional circumstance is taken into consideration with regard to ascertaining whether the measure of proof were high enough to avoid a recovery of this executed contract, and that it is a fact that this piece of land was within a very short distance of the mill where the contract was talked about, and where the contract was finally executed, and that it was not a matter so very difficult to ascertain whether the statement, if made, were true, relative to the creek by measurement as appears by the evidence in this case to the effect that on August 21 a measurement was made, and it was found that the alleged statement was untrue.]
A written contract under seal, gentlemen of the jury, is looked upon as a solemn act, and in order that persons who do business and who make contracts should be relieved from uncertainty, the courts have laid down the rule that in order to avoid the effect of such a solemn contract, the proof of the matter which it is sought to avoid or evade, must be of more than ordinary character. It must be clear, precise and indubitable, especially when referring to a case like this and where the only evidence by which it is sought to avoid a recovery in an action upon a contract like this, is simply that of the party who seeks to avoid the recovery. That, in the opinion of the court, is insufficient [and we therefore instruct you, gentlemen of the jury, that upon the other phases of this case, there being practically no contention against the position of the plaintiff, with regard to his title, the executed contract, the survey, the number of acres, and the tender, we direct you to find a verdict in favor of the plaintiff as hereinbefore stated, the aggregate amount of thirty-seven and ninety-five hundredths acres at $120 an acre, less a payment of $300, and interest upon the balance from August 22, 1903, at five per cent.]. [6]
Verdict and judgment for plaintiff for $4,835.97. Defendant appealed.
Errors assigned were (5, 6) above instructions, quoting them.
Judgment affirmed.
A. Mitchell Palmer, for appellant. -- Fraudulent representations of an existing fact materially affecting the value of the land constitute a good defense: Stubbs v. King, 14 S. & R. 206; Frederick v. Campbell, 14 S. & R. 293; Sutton v. Morgan, 158 Pa. 204; McNeile v. Cridland, 168 Pa. 16; Vernam v. Wilson, 31 Pa.Super. 257.
The proof was sufficient to warrant the submission of the question of the fraudulent representations to the jury: Machin v. Prudential Trust Co., 210 Pa. 253; Guthrie v. Horner, 12 Pa. 236; Buchanan v. Wurtz, 5 Watts, 151; Braunschweiger v. Waits, 179 Pa. 47; Smalley v. Morris, 157 Pa. 349.
A misrepresentation, which possibly might not be sufficient ground of an action for damages, may be sufficient to entitle the party deceived to rescind the contract or to defend pro tanto, an action upon it: Lake v. Weber, 6 Pa....
To continue reading
Request your trial