Pope v. Michel , 189 Pa. 125 ( 1899 )

Opinion by

Mr. Justice Fell,

The original affidavit of defense does not meet the averments of the plaintiff’s claim. Anticipating the defense that the first deed tendered included land to which he had no title, the plaintiff in his statement admits that there was an error in the description, and explains that it was due to following an error in the deed from his grantor, and avers that when it became known to him he procured a conveyance of the part omitted by mistake, and then tendered the defendant a deed for the lot sold to him.

But the supplemental affidavit sets up as a distinct ground of defense that tbe defendant was deceived and misled by the plaintiff as to the location of the lot which he agreed to purchase. The substance of the affidavit on this branch of the defense is that the conveyance was to be subject to certain restrictions in regard to a private roadway which was marked on the plan of lots exhibited to the defendant when he was negotiating for the purchase; that he asked the plaintiff how far the northwesterly line of the lot was from this roadway, and was told that the distance was fifteen or twenty feet, while in fact the lot was very close to the roadway, and on a much steeper portion of the ground, and that in improving the lot it would probably be necessary to build a retaining wall; that this was a misrepresentation of a material fact affecting the value of the land; and that he was deceived and misled by it, and would not have entered into the agreement if the truth had been told him.

This ground of defense is not well stated, but taking the affidavit as a whole there was enough set out to entitle the defendant to a trial. The distances were not marked on the plan, and if the affidavit is true the defendant relied upon and was misled by a statement of the plaintiff as to the location of the lot.

The judgment is reversed with a procedendo.