Rodgers v. Olshoffsky

Mr. Justice Green

delivered the opinion of the court, October 5, 1885.

We fail to discover in this record even a scintilla of evidence showing bad faith on the part of the plaintiff, and therefore it was error to leave that question to the jury. The learned counsel for the defendant says there was abundant evidence of bad faith, and refers us to the verdict as proof of the assertion. But unfortunately for that method of argument the fact of the verdict, where there is no evidence to support it, proves simply the wisdom of the rule which interdicts the submission of the controverted question to their action. Not being referred to any evidence supporting the verdict in this case we have searched the record for it with the utmost care and patience but without success.

The subject of the sale was a lot of ground in the city of Bradford. It is described in the deed from the plaintiff to the defendant in the same manner precisely as in the deed from Parsons to the plaintiff, and when the defendant sold it to Rothstein he again described it and assumed to convey it in the identical language of the previous descriptions. The description in the plaintiff’s deed from Parsons as in all the other deeds is by adjoiners and by stating the outside lines thus:

“ All that certain lot or parcel of land situate lying and being on the north side of Main street, in the pity of Bradford, Mc-Kean county and State of Pensylvania, bounded and described as follows: to-wit; commencing at a stake in north line of Main street, the south-west corner of lot of Willis & Smith ; thence westwardly along north line of Main street twenty (20) feet to a stake; thence northwardly and parallel with Mechanic street ninety-two (92) feet to a stake; thence eastwardly and parallel with Main street forty (40) feet to a stake; thence southwardly and parallel with Exchange street seventeen (17) feet to a stake; thence westwardly and parallel with Main street twenty (20) feet to a stake, and thence southwardly along lot of Willis & Smith the west line and parallel with Mechanic street seventy-five (75) feet to place of beginning, being same land conveyed to said first party by Enos Parsons and wife by deed bearing even date herewith.” The property is not described as a lot containing twenty feet in width on Main street and extending northwardly of that width, but as a lot two of the lines of which are twenty feet in length. It is alleged that these lines are, in reality, only eighteen and one third feet long, and that, therefore, the plaintiff may recover from the defendant, his vendee, only so much of the purchase money as will be left after deducting an amount proportionate to the difference in quantity indicated by the difference in the length of these lines. There was no quantity of land stated in the description as being contained in the lot. There was no warranty either of the quantity of the land conveyed, or of the correctness of the lines as described. The transaction was entirely closed by the execution, delivery and acceptance of a deed for the property, payment of part of the purchase money and delivery of a bond for the remainder. The purchaser, being examined as a a witness on his own behalf, testified that he went to the property and looked at it before he bought it; that he looked the property over before he bought it; that there was a building on it, that he did not know the size of the building, paid no attention to it, merely bought the lot. He does not say that there was any specific representation made that the lot was twenty feet in width, or that lie was induced to buy it upon the faith of its being of that width. He was asked: “ Q. Was there anything said about the size of the lot or the building when you were there? A. He called it twenty feet. Q. Did he tell you who he got it from ? A. Yes, sir. Q. Who ? A. A Mr. Parsons. Q. State whether or not Mr. Rothstein made any claim upon you for the deficiency in this laud? A. No,.sir.” He was also asked: “ Q. Did you have any conversation about it? A. Nothing more than about the price. Q. Did you go and look at it? A. Yes, sir. Q. Did you measure it? A. No, sir. Q. How did you ascertain what the size was? A. Mr. Rodgers told me twenty feet.” The foregoing is absolutely all' the testimony the defendant gave in regard to statements concerning the size of the lot, and it proves at the very best nothing more than that the plaintiff said to him what he believed to be true and had reason to believe true. He had bought the lot from Parsons as being twenty feet wide, his deed so described it. There is nothing to show that he knew that it was only eighteen and one third feet wide There is absolutely nothing to show that he practiced any fraud or deceit upon the defendant in regard to the width or anything else. The defendant had just as good opportunity as the plaintiff to ascertain the width of the lot. He could have measured it, but he did not see fit to do so; or he could have taken a warranty as to the quantity, but did not. It is impossible to find anything more in the testimony than a mistake which was mutual, with equal opportunities to both to correct it before closing the transaction. That this is not enough to open the contract and let either party in upon the other for redress after deed delivered and bond given for purchase money has been many times decided, and is undoubted law in this state. In Cronister v. Cronister, 1 W. & S., 442, Ave held that, as between a vendor and a vendee of land, the acceptance of a deed and execution and delivery of bonds for the purchase money, closes the question upon the agreement, merges it in the conveyance, and precludes the parties from afterwards claiming either, on the one side, an allowance for a deficiency in the land, or, on the other, payment for a surplus.

In Farmers & Mechanics Bank v. Galbraith, 10 Barr, 490, Gibson, C. J., said: “ The execution of a conveyance is the consummation of a purchase, after Avhich the parties have no recourse to each other except for imposition or fraud. Such is the rule established by Bailey v. Snyder, 13 S. & R., 160, and several other cases, in Avhich it was ruled that, when a conveyance has been made Avithout a survey, and a bond taken for the purchase money, the contract is definitely closed, except where the actual quantity differs so grossly from the estimate as to be evidence of deceit.” In Dickinson v. Voorhees, 7 W. & S., 353, on a sale of 3235 acres there was a defiency of 445 acres, yet it was held that, after deed made and bond delivered, the deficiency constituted no defence against the payment of the bond. In Coughenour’s Adm’rs v. Stauft, 27 P. F. S., 191, we said, Agnew, C. J.: “ Where the contract is executed by de.ed and bond or other security, taken for the unpaid purchase money, the rule is not to open a contract so far executed to allow for a deficiency of quantity, nor can there be a recovery for an excess. The cases are numerous (citing a number). This rule, as to the closing of the contract by deed, holds even when the contract Avas for a sale by the acre.” Citing several cases.

In the present case, conceding that there was a deficiency of one {fa feet on a line of twenty feet, Ave cannot regard it as so gross as to be evidence of deceit, and there is no evidence whatever of any actual fraud or deceit in the case.

But, in addition to the foregoing considerations, it appears that the defendant subsequently sold the property in question to one Rotlistein, describing it in the deed in the identical language by which he bought; that ho has not only never been evicted from any of the land purchased, but tlmt no demand has ever been made by bis vendee for any shortage in the property. In the description he recites that it is the same land sold by Parsons to Rodgers, and by Rodgers to himself, Olshoffsky. Moreover, the consideration named in this deed is #4,200, whereas the consideration, paid by 1dm to Rodgers, was #8,600. It does not appear that he put any improvements on the property, and apparently it seems that he sold to Roth-stein precisely what he bought from Rodgers at a profit of #600, and yet claims for a deficiency upon the theory that lie sustained damage on account of it. lie has deprived himself of the ability to restore the property to Rodgers by selling it to another, and bas tlius apparently brought himself within the rule stated in McKeen v. Beaupland, 11 Cas., 488, that, “in an action for the purchase money of lands, the defendant cannot resist the plaintiff’s right to recover on the ground of a failure of title as to a portion of the property, if lie has disabled himself from placing his vendor in statu quo by conveying the title to a third party.” We do not decide the ease upon theses later considerations, those first stated being quite sufficient to dispose of it. We tliink the plaintiff’s fourth point should have been affirmed, and the jury directed to return a verdict for the balance due on the bond with interest. All the assignments after the sixth are sustained.

Judgment reversed and a venire de novo awarded.