Wasserman v. Fleisher , 249 Pa. 29 ( 1915 )

Opinion by

Mr. Justice Mestrezat,

The learned trial judge tersely and correctly disposed of this case in concluding the statement of his reasons for granting the nonsuit when he said: “Wasserman may be entitled to recover his individual loss for breach of this warranty by Fleisher in an issue properly framed, but there was no warranty to Arnold of which he could take advantage in this suit. The pleadings do not warrant a verdict for plaintiff under the evidence presented for the damages claimed.”

The suit was brought by Wasserman to the use of himself and Arnold. The statement alleges that in negotiating for and making the purchase of the property, Wasserman was acting for himself and Arnold, sets out the written representations relative to the property, and the alleged warranty contained in the subsequent letter. It is averred that the cash investment of the plaintiffs in the property is $10,976.28, that the defendant has wholly failed to make good his undertaking with regard to the premises sold, and further: “Plaintiffs are willing to convey said premises to defendant or his nominee upon reimbursement of the cash invested by them in said premises, namely, the sum of $10,976.28, with interest as aforesaid; but the defendant has failed and refused and still refuses to pay said sum or any part thereof. Plaintiffs therefore claim of the defendant the said sum of $10,976.28 together with interest thereon as aforesaid.”

The statement, as will be observed, avers that the defendant has “failed to make good his undertaking with regard to said premises,” and has refused to rescind the contract and repay to plaintiffs their cash investment in the property with interest. The evidence did not warrant a recovery either on the theory that the suit was on the warranty or on the theory of the right to rescind the contract and recover the purchase-money paid. There is no averment or proof of fraud or deceit in the sale which had been fully executed, and, therefore, the plaintiff could not rescind the contract for breach thereof and recover back the purchase-money. If, however, such action would lie, it must be brought in the names of both purchasers and not in the name of one of them. If the action is based on the warranty the plaintiff individually and not he and Arnold would be entitled to the damages caused by the breach, and the measure of damages would be the difference between the real value or market price of the property and its value as warranted:. Seigworth v. Leffel, 76 Pa. 476; Freyman v. Kuecht, 78 Pa. 141. The case was entirely wanting in proof on the subject.

There was no evidence under the pleadings to support a verdict for the plaintiff, and the nonsuit was properly granted.

Judgment affirmed.