Keefe v. Sholl

Pee Cueiam, In this action of trespass for deceit, alleged to have been practiced by defendant in connection with the sale of a certain tract of land, the statement of claim avers, among other things, that “ said defendant, by her agent and attorney in fact, one Abraham Rankin, then and there represented to the plaintiffs that [92] the said tract of land contained three and twenty-four hundredths acres, and that the line thereof ran within six feet of the door of the Wheat Sheaf Hotel upon the adjoining premises, and included the hotel stables and shedding, and other valuable improvements; . . . . that the representations aforesaid were false and fraudulent; that the defendant owned but two and one hundred and twenty perches of ground; that the line of her land was ninety-seven feet six inches distant from the hotel door, and that the valuable stables and shedding which the defendant, by her said agent and attorney, had represented to be upon the land sold were not upon her land at all, but were upon land owned by another person, in which she had no interest whatever.” These averments constitute the alleged deceit. No scienter is averred in the statement, nor does it appear that there was any offer to make proof thereof on the trial. On the contrary, the defendant, called as on cross-examination, testified positively that she had no knowledge of the alleged false statements. The recital of the premises conveyed in the deed, executed and delivered by the defendant, as “ all that certain tract or piece of ground, with the messuages or tenements and barns, stables and sheds thereon erected,” etc., “containing about three and twenty-four hundredths of an acre, be the same more or less,” is no evidence of deceit. The facts recited were literally true. The quantity of the land was stated only approximately, the true contents being given by courses and distances; and the deed did in fact convey “ barns, stables and sheds,” but not all that the plaintiffs supposed they were buying. The question of ratification is not involved in the case, because the action for deceit is not founded on the contract, but on the alleged fraudulent representations and guilty knowledge on the part of the defendant. In the absence of any evidence of such knowledge, on her part especially, there could be no recovery: Freyer v. McCord, 165 Pa. 539. Further elaboration is unnecessary. The evidence introduced by the plaintiffs was insufficient to carry the case to the jury, and hence the nonsuit was properly ordered, and there was no error in refusing to take it off. Judgment affirmed.