Appeal, No. 178, March T., 1950, from order of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 1747, in case of Elsie S. Lake et vir v. Wilbur E. Thompson et al. Order reversed.
Edward A. Tobias, with him Tobias & Weilersbacher, for appellants.
John L. Miller, with him Duff, Scott & Smith, Fred C. Houston, Jr. and Houston & Houston, for appellees.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
Elsie S. Lake and Albert B. Lake, her husband, appellants, filed their bill in equity against Wilbur E. Thompson and Hazel, his wife, and John R. Smith and Fred C. Houston, appellees, to effect cancellation of a deed, purchase money mortgage and accompanying bond, averring fraudulent representations by Wilbur E. Thompson in the sale of a house and lot in the Borough of Ben Avon by him and his wife to appellant, Elsie S. Lake. Smith and Houston were attorneys for the respective parties and are not charged with any fraud. They are joined for the reason that they hold jointly in escrow a portion of the purchase price. Preliminary objections to the bill averring appellants' failure to allege sufficient facts to establish fraud were sustained by the court below. This appeal followed.
The bill contains the following allegations: Wilbur E. Thompson has been in the real estate business for many years. He and his wife became owners of the property involved by devise under the will of Jennie M. Curtis. Thompson on September 20, 1948, met Mrs. Lake on the premises, 7000 Perrysville Avenue, Ben
Avon, for the purpose of attempting to effect a sale of the property to her. He knew at that time that this was her first and only view of the property and she was compelled to return immediately to her employment in New York.
Thompson, in the course of their conversation, made the following material representations to her: The heating plant, plumbing and electric wiring were in good condition. There was sufficient land to sell a 60 foot lot off of the property, and for which lot an offer of $2,000 had already been made. A Ben Avon Borough ordinance required 60 foot frontage on residential lots. An adjoining dilapidated house which detracted greatly from the value of the property in question had been condemned by the Borough and would shortly be torn down. A large and unsightly water tank in the kitchen with numerous pipes connected thereto could be removed since a tank in the cellar supplied all necessary hot water. The cellar was dry and in good condition.
The bill further averred: Each of the foregoing representations was untrue; the heating plant was obsolete and practically useless; the plumbing was antiquated and neither sink nor toilet could be operated; the electrical system contained loose and broken connections and was dangerous; the roof was old and in wet weather water ran down into the bay window of the house and caused water to pour into the cellar, endangering the foundation; the gutters on the roof were improperly installed, nails were driven through them, all of which could not be observed from the ground in dry weather; if 60 feet were to be sold off the side of the property, the kitchen to the residence would also be sold ...