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BARDWELL v. WILLIS COMPANY (11/09/53)

November 9, 1953

BARDWELL, APPELLANT,
v.
THE WILLIS COMPANY



Appeal, No. 6, March T., 1953, from order of Court of Common Pleas of Erie County, May T., 1951, No. 509, in case of Philip E. Bardwell et al., formerly doing business as Hires Bottling Co. of Erie v. The Willis Company, Inc. Order affirmed.

COUNSEL

John M. Wolford, with him Lindley R. McClelland, for appellants.

Bryan A. Baur, with him Marsh, Spaeder, Baur & Spaeder, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.

Author: Bell

[ 375 Pa. Page 504]

OPINION BY MR. JUSTICE BELL

Plaintiffs brought an action in trespass for alleged actual damages and estimated loss of profits suffered as a result of misrepresentations made by defendant's agents during the negotiations prior to the execution of a real estate lease for a property in Erie. Preliminary

[ 375 Pa. Page 505]

    objections in the nature of a demurrer were sustained by the court below.

Plaintiffs averred that they contemplated engaging in the business of bottling Hires Root Beer and informed defendant's representatives that their business required a location with "ample water facilities for the several operations", "large drainage facilities for the operations", "definite electrical facilities and a switchboard for the operation" and "heating facilities capable of quickly heating water to minimum required temperatures and of keeping said premises warm". The extent of such facilities necessary to meet these descriptive terms is not averred; nor is it averred that the defendant had any information or knowledge with reference thereto. Averment is made, however, that the defendant's agents falsely, intentionally and fraudulently represented at the time the premises were being inspected that the facilities thereon met the standards required by plaintiffs and that in reliance upon such representations a five-year lease beginning May 1st, 1947, was entered into.

Six monthly installments of rent, in accordance with the terms of the lease, were paid; thereafter plaintiffs defaulted in their rent. On June 3, 1948 The Charles E. Hires Company terminated plaintiffs' franchise rights and the defendant issued a landlord's warrant for unpaid rent, which was followed by a sale of plaintiffs' assets on said premises. The damages claimed in this suit are the rental payments made, the value of machinery and equipment sold under the landlord's warrant, and anticipated profits to the expiration of the lease totaling altogether $61,056.00. Plaintiffs averred that the financial losses above mentioned were caused entirely by loss of business due to the fact that the rented premises were not, as represented, fit for the intended use.

[ 375 Pa. Page 506]

Attached to the bill of complaint is a copy of the written lease executed by the parties, one clause of which reads as follows: "Second parties (the tenants who are the present plaintiffs) covenant and agree as follows: That they examined and are familiar with the condition of the premises and buildings located thereon, and that the same are received in good order and condition without warranty as to the condition or repair thereof by the first party for their intended use." ...


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