Morris v. Shakespeare , 9 Sadler 345 ( 1888 )

Opinion by

Mr. Justice Clark:

In the affidavit of defense filed in this case by Thomas Hoopes, with whom, as the agent of the defendant, the terms of the contract in suit were arranged, it is explicitly set forth that the plaintiff represented to him at the time that the railroad siding was appurtenant to the refrigerator building; in the words of the affidavit that it “belonged to' and went with the building,” that he owned the ground and laid the track at his own expense, for the use of that building, and that the track went with the lease; that “if Mr. Morris leased the buildings, he wTould have the siding also,” etc.

It is further set forth that a building would be useless for refrigerator purposes, without a railroad siding, and that upon the strength of these representations, on part of the plaintiff, he notified Mr. Morris that the house was suitably located for the handling of beef. Mr. Morris states that these facts were fully communicated to him by Hoopes, his agent, and that he was thereby induced to execute the lease; that the representations were false and fraudulent, and the plaintiff, at the time of mailing them, knew them to be false, as he had previously sold and conveyed the ground upon which the siding was located, together with the sole and exclusive use thereof, to other parties; that he was ignorant of the fraud which had been practised upon him, until in the month of November, 1885, when he, for the first time, undertook to use the leased premises and the siding, for the purposes designated in tbe contract and was prevented from so doing by the parties to whom the siding had been transferred.

It is further set forth in the affidavit that due notice was given to the plaintiff, and the possession was then and from thenceforth wholly abandoned. The rent, it is admitted, was all paid up to the 28th of November, 1885, this suit being brought for rent accruing subsequently to that date.

Assuming all these facts to be true, we are clearly of opinion that a substantial defense is exhibited, and that the judgment for want of sufficient affidavit should not have been entered. A reference to the cases of Hoopes v. Beale, 90 Pa. 82; Bell v. Clark, 111 Pa. 92, 2 Atl. 80; and Cullmans v. Lindsay, 114 Pa. 166, 6 Atl. 332, is sufficient to indicate the ground upon which this opinion is based.

It is true the effort of the defendant is to set aside a contract under seal, and the evidence must be sufficient to justify a chancellor, if the proceedings were in the equity forms, in entering a decree for a cancelation of the contract, but with this we have now nothing to do; that question will arise in the further progress of the cause. The affiant says he expects to be able to prove the facts alleged; we cannot anticipate either the manner or the measure of the proof which he may make. It is sufficient for us now that the facts alleged in the affidavit, if sufficiently proved, constitute a good defense.

The judgment is reversed and a procedendo awarded.