Appeal, No. 145, Jan. T., 1952, from judgment of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1951, No. 3277, in case of Abrams, Inc. v. Samuel Wolkov. Judgment affirmed; reargument refused June 25, 1952.
Sylvan M. Cohen, with him Irving I. Specter and Cohen & Cohen, for appellant.
Abram P. Piwosky, with him Sacks & Piwosky, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE MUSMANNO
On September 11, 1951, Samuel Wolkov agreed, at an auction sale, to buy from the plaintiff an apartment building known as 2254 Bryn Mawr Avenue, for $37,300, and to make a deposit of $5600. The agreement, which was in writing, contained the following provisions: "The Buyer acknowledges that he has entered into this agreement as a result of an inspection of the above described premises made by him; that said premises is being purchased as a result of said inspection and not as a result of any advertisement, handbill or any other representation, either oral or written, made by the
Seller, any selling agent or the Louis Traiman Auction Co., and the Buyer agrees that neither the Seller nor the Louis Traiman Auction Co. shall be responsible or accountable for any error in any advertisement, handbill or announcement made by the Seller or the Louis Traiman Auction Co., nor for any agreement, condition, representation or stipulation, oral or written, not specifically set forth herein...
"This agreement contains the entire agreement between the parties; no prior agreement or representation of any kind, and no contemporaneous or subsequent oral agreement or representation and no dealing between the parties or custom shall be permitted to contradict, vary or add to the terms hereof."
After paying $2300, the defendant refused to complete the purchase, and the plaintiff sued in assumpsit for the remaining $3300 due on the forfeited deposit. The lower court entered judgment for the plaintiff, and the defendant has appealed to this Court.
The defendant contends that the plaintiff perpetrated a fraud on him and the public when it advertised that each apartment in the building contained "2 tile baths," whereas in point of fact each apartment contained only one bathroom. The plaintiff admits the auctioneer's advertisement misdescribed the apartments as containing two bathrooms instead of one, but submits this would not relieve the defendant from his contract since the error was not such a material representation as would justify rescission; and further, that the right of rescission was precluded by the exoneration and integration clauses in the agreement. The defendant replies that the misrepresentation is a material one and that ...