Kelly-Wood Real Estate Co. v. Lloyd 50 Pa. Super. 393

Kelly-Wood Real Estate Company v. Lloyd, Appellant.

Affidavit of defense — Promissory note — Representations as to rental value of real estate.

In an action upon a promissory note, it appeared that the plaintiff, a real estate brokerage company, received the note from the defendant in settlement of a real estate commission in an exchange of real estate. The defendant filed an affidavit of defense in which he averred that while negotiations for the trade were under way plaintiff represented to defendant that the building to be taken by the latter was rented at upwards of $3,000 per year, specifying the rentals for each of the rooms and apartments; that after the trade was consummated and the note delivered he discovered that “said building was not rented as represented, but that some of the tenants occupied the building without paying any rent, and the entire annual revenue from said building amounted to much less than the sum represented by plaintiff; that the first floor, containing the storeroom brought in no revenue at all.” He further averred that the said premises were actually worth $5,000 less than if the rentals had been as represented, that therefore by plaintiff’s breach of faith and misrepresentations defendant suffered damages in the sum of $5,000. Held, that the affidavit of defense was insufficient to prevent judgment.

Argued April 10, 1912.

Appeal, No. 32, April T., 1912, by defendant, from order of C. P. No. 3, Allegheny Co., May T., 1911, No. 137, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Kelly-Wood Real Estate Company v. S. H. Lloyd.

Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.

Affirmed.

*394Assumpsit on a promissory note.

The defendant’s affidavit of defense was as follows:

Defendant avers that the $1,200 promissory note, a copy of which is set out in plaintiff’s statement, was given by him to plaintiff in settlement of a commission claimed for services rendered by plaintiff to defendant as agents of defendant, in the following transaction.

On or about November 12, 1909, plaintiff elected a trade of certain of defendant’s property for the property located at southeast corner of Thirty-fifth and Butler streets, Pittsburg, Pennsylvania, having erected thereon a large brick building containing store rooms and apartments, of which plaintiff was the renting agent.

While the preliminary negotiations for the trade aforesaid were under way, plaintiff represented to defendant that the building to be taken by defendant was rented at upwards of $3,000 per year, as follows: Two storerooms at $25.00 per month each; one storeroom at $35.00 per month; four apartments at $20.00 each; four apartments at $15.00 each and two apartments at $13.00 each.

Defendant on inquiry at the said premises was refused information as to the matter of leases and rents by the tenants and requested plaintiff to produce said lease, whereupon plaintiff again assured defendant that the property was rented as above set forth and that the leases would be turned over to defendant.

Defendant relying wholly on the aforesaid representation of plaintiff, his agent, as to the income from said property, was induced to make the trade.

Defendant further avers that after said trade was consummated and the deeds exchanged, and after the said note was delivered to plaintiff, he first discovered, in a conversation with, the president of said Kelly-Wood Real Estate Company, that said building was not rented as represented by plaintiff, but that some of the tenants occupied the building without paying any rent and the entire annual revenue from said building amounted to much less than the sum represented by plaintiff. That *395the first floor, containing the storeroom, brought in no revenue at all.

Defendant avers that the rental income of said building as represented by plaintiff was a material factor in inducing him to make the exchange aforesaid, and that had he not been deceived therein by the misrepresentations of plaintiff, he would not have traded.

Defendant further avers that the property as represented by plaintiff was worth upwards of $5,000 more than the property as defendant took it, and that the property traded by defendant was fully worth the Butler and Thirty-fifth street property as represented by plaintiff.

Defendant avers that by plaintiff’s breach of faith and misrepresentations in the premises, he was damaged to the amount of $5,000 or more, wherefore, he is not indebted to plaintiff in any amount, but that plaintiff is indebted to defendant by reason of the premises aforesaid, in the sum of, to wit, $5,000, for which he asks a certificate.

In a supplemental affidavit of defense the defendant averred that the representations set forth in the original affidavit of defense were made by W. P. Lantz, and Samuel Kelly, who were agents for the plaintiff company in' the transaction in question.

The court made absolute a rule for judgment for want of a sufficient affidavit of defense.

Error assigned was the order of the court.

W. F. Petty, of B. B. Petty & Sons, for appellant,

cited: Devers v. Sollenberger, 25 Pa. Superior Ct. 64; Griswold v. Gebbie, 126 Pa. 353; Kramer v. Bjerrum, 19 N. Y. App. Div. 332 (46 N. Y. Supp. 496); Glennon v. Lebanon Mfg. Co., 140 Pa. 594.

James H. Gray, for appellee.

There can be no recovery for a deceit by untrue representations unless the party when he made the representations was conscious of their *396untruth, or of his ignorance as to their truth or untruth, and this wrong condition of mind must be alleged and proven. If the maker of the representations honestly believes them to be true, the action for deceit fails: Lamberton v. Dunham, 165 Pa. 129; Griswold v. Gebbie, 126 Pa. 353; Cox v. Highley, 100 Pa. 249; Duff v. Williams, 85 Pa. 490; Sacks v. Schimmel, 3 Pa. Superior Ct. 426; Wilson v. Talheimer, 20 Pa. C. C. Rep. 203.

July 18, 1912:

It is well settled that affidavits of defense “should contain a clear and concise statement of the facts which constitute a basis for an assessment of the damages under the legal rule by which they are measured:” Ogden v. Beatty, 137 Pa. 197; Hollowell v. Paige, 46 Pa. Superior Ct. 108; Loeser v. Rag Warehouse, 10 Pa. Superior Ct. 540; Anderson v. Williams, 10 Pa. Superior Ct. 329; Close v. Hancock, 3 Pa. Superior Ct. 207.