Suraci v. Ball
| Decision Date | 04 March 1947 |
| Citation | 51 A.2d 404,160 Pa.Super. 349 |
| Parties | Suraci, Appellant, v. Ball |
| Court | Pennsylvania Superior Court |
Argued December 11, 1946.
Appeal, No. 24, Feb. T., 1947, from judgment of C. P LackawannaCo., Sept. T., 1946, No. 2154, in case of Anthony Suraci v. Freda R. Ball.
Assumpsit.
Defendant's affidavit of defense raising questions of law sustained opinion by Leach, P. J. Plaintiff appealed.
Eugene Nogi, with him Nogi, O'Malley & Harris and James E. O'Brien, for appellant.
Ralph P. Needle, with him Needle, Needle & Needle for appellee.
OPINION
Appellant challenges a judgment entered against him by the court below which sustained an affidavit of defense raising questions of law to appellant's statement of claim in assumpsit.
The statement alleged that, relying upon fraudulent misrepresentations of defendant's husband, a real estate agent acting for her, appellant executed a written contract to purchase real estate which he desired to acquire as an investment, and that the annual tax charge was a material consideration to him. The fraudulent misrepresentation was the agent's statement that "he had made a check of the" taxes upon the property and that they amounted to $ 350 annually. When the parties met for settlement and delivery of the deed, appellant was informed that the taxes for 1945 were $ 645.11, and for 1946, the year in which the agreement was made, $ 577.58, and he refused to accept the deed and pay the balance of the consideration. The agreement followed a familiar form, and contained no stipulation concerning taxes beyond the usual provision for their apportionment. Appellant sued to recover the hand money he had paid upon executing the contract, and expenses incurred for the search of the title and a survey of the premises.
The court below held that taxes are a matter of public record of which appellant was charged with notice, and that his failure to consult the record was negligence which barred recovery. For that ruling the court relied upon Kalmans v. Powles, 121 Wash. 203, 209 P. 5. That case, our research indicates, is out of line with other cases decided by the same court. Crawford v. Armacost, 85 Wash. 622, 149 P. 31; Petersen v. Graham, 7 Wash.2d 464, 110 P.2d 149. And in Stanton v. St. Michell, 130 Wash. 449, 227 P. 737, the Kalmans case was explained, its application limited to its own facts, and it is now authority only for the self-evident proposition that a vendee may not rely upon a vendor's representations as to future taxes. The case is a sport in the law, and carries no persuasive power. Annotations, 29 A. L. R. 621; 33 Id. 853, 1062; 137 Id. 275.
The true rule, supported by the overwhelming weight of current authority, is stated in 23 Am. Jur., Fraud and Deceit, § 163: (Emphasis added.) Or as stated more succinctly by Williston on Contracts, § 1516: "Nor does the fact that the representation concerns a matter of public record exonerate the defrauder from liability."
Although the principle has not been litigated in Pennsylvania in the exact factual pattern here presented, it has been long recognized by our courts. At least three cases have been adjudicated by our appellate courts in conformity to it. Forster's Executors v. Gillam, 13 Pa. 340, flatly rules that a grantee may defeat an action for the purchase price upon showing that he relied upon the grantor's misrepresentations relating to the quality of his title, even though he granted by a special warranty deed. In Babcock v. Case, 61 Pa. 427, a grantee recovered for a fraudulent misrepresentation as to a title although an examination of the record would have revealed the falsity of the grantor's representation. In Vernam v. Wilson, 31 Pa.Super. 257, a vendee was allowed to recover damages for fraud where vendor only concealed and did not misrepresent the fact that he had previously conveyed the coal underlying the tract, which vendee could have ascertained by an inspection of the records. For other cases where aspects of the doctrine have been dealt with, but not explicitly applied, see Hultz v. Wright, 16 S. & R. 345; Lloyd v. Farrell, 48 Pa. 73; Maul v. Rider, 59 Pa. 167; Wilson's Appeal, 109 Pa. 606, 7 A. 88; Griswold v. Gebbie, 126 Pa. 353, 17 A. 673; Davis v. Monroe, 187 Pa. 212, 41 A. 44; Madole v. Miller, 276 Pa. 131, 119 A. 829.
The cases relied upon by appellee do not control the pending question. In Rothermel v. Phillips, 292 Pa. 371, 141 A. 241, a stock of goods in a store were sold to a buyer who saw and examined it, and paid the price at which his own agent had appraised it. Phipps v. Buckman, 30 Pa 401, where the court confessed its reluctance to translate the social conscience into terms of legal rules, can in this day be accepted only for the proposition that an expression of the seller's opinion of value will not support an action based upon fraud where in the sale of chattels the buyer has seen and examined them. "The modern tendency is certainly toward the doctrine that negligence in trusting in a misrepresentation will not excuse positive willful fraud or deprive the defrauded person of his remedy": Williston, supra. If a choice must be made between the negligent and the deceitful, the present trend of the law is to protect even the foolishly credulous against the...
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