Herman v. Tepletz ( 1924 )

Tepletz brought action in the Cuyahoga Common Pleas against Herman for deceit in the sale of real estate in Cleveland, the claim being made that she represented that the lot was 173 feet in depth from the sidewalk line, when in fact it was only that depth from the center of the street upon which it fronted. The question presented is whether the rule of caveat emptor applies at all in Ohio sales of real estate.

The record shows that Tepletz was an experienced business man, buying and improving sites for apartment houses, and that Herman was a young woman school teacher, in the primary grades of the public schools, and had been for lit) or more years previous.

Attorneys — Faekler & Morgan, for Herman; J. C. Cline, for Tepletz; all of Cleveland.

A large amount of testimony was given before the trial court to the effect that Tepletz approached Miss H. to buy the lot. That a contract of sale was made by the escrow department of the Cleveland Trust Co., which described the lot as “approximately 500x173 feet.” That before the contract was signed, he had been on the property at least three or four times — had walked over the lot with an assistant; that there was a dwelling upon it and a fence at the rear-end of the lot, which was the line.

The deed which she gave for the lot described it as being measured from the center of the street, and the original deed to her and abstract of the premises which she gave to him, so described the lot and all the lots in the neighborhood were thus bounded.

Her testimony was that she told him the depth of the lot as described in her deed and nothing was said as to the starting point, and when she told him he was standing on the lot, having just walked over and around it. That he could have paced it off, and that the use of his eyes would have told him that the distance from the street line was less than 173 feet. No effort was made to deceive him.

Several instructions to jury were asked by her — upon the question of the duty of the buyer of property to use his eyes and ascertain whether the representations of the seller were false, and in regard to the application of the rule of caveat emptor, which were overruled. The court charged the jury in substance:

If the plaintiff was induced to buy and pay for the lot by false pretenses made to him by Herman, in reference to the depth of the lot . . . and they were of such a nature as to affect the character, utility and value of the property, and suffered damage by reason thereof, he may recover in the action, and it is not necessary that she knew the representations to be false or made with intent to deceive him.

Tepletz recovered a verdict of $4,000, which the trial court cut to $2,000 with consent of Herman. The Court of Appeals affirmed this, one judge dissenting.