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MUSSER v. SHENK (06/15/60)

June 15, 1960

MUSSER
v.
SHENK, APPELLANT



Appeal, No. 427, Oct. T., 1959, from judgment of Court of Common Pleas of Lancaster County, June T., 1958, No. 16, in case of Elias C. Musser et al. v. Lee M. Shenk. Judgment affirmed.

COUNSEL

William C. Storb, with him Stein, Storb and Mann, for appellant.

W. Hensel Brown, with him Brown & Zimmerman, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Gunther

[ 192 Pa. Super. Page 472]

OPINION BY GUNTHER, J.

This appeal is from the refusal of motions for judgment n.o.v. and for a new trial in a trespass action brought to recover damages for fraudulent misrepresentation involved in the purchase of a certain piece of real estate.

On July 21, 1957, appellees, Elias C. Musser and Elizabeth T. Musser, his wife, purchased from appellant, Lee M. Shenk, a home in West Lampeter Township, Lancaster County, for the sum of $15,300.00. The source of water supply for this home came from a well which the vendor had drilled during the course of construction of the property.

Previous to the sale of this property, during the month of June, 1957, appellees contacted appellant and

[ 192 Pa. Super. Page 473]

    discussed various features of the home. They specifically asked about the water supply and its adequacy to meet their household requirements. Appellant informed appellees that the water supply would meet their normal family use and that the well would supply a sufficient amount of water for cooking, drinking, bathing and laundry purposes. Again on June 21, 1957, appellees raised the question of an adequate water supply for their family use, informing appellant that the family consisted of four members, and again appellant represented that the well would supply a sufficient amount of water to meet normal family use but that the water would be insufficient to take care of extended lawn sprinkling or car washes. Based upon such representations, appellees entered into a sales agreement for the purchase of the home and subsequently consummated the sale.

Appellees moved into the new home on July 27, 1957 and discovered, after using a small amount of water for cleaning up the cellar, letting water for two baths, and washing up the evening dishes, that no further water was available. The next day a plumber was called out to ascertain the cause for the lack of water, and at that time it was ascertained that the well had gone dry. Appellant was present on this occasion and when he was asked what was going to be done about this situation, he informed appellees that this was their problem.

Appellant persisted in his refusal to accept responsibility for the lack of water and a suit for damages was filed in June, 1958. After trial, the jury returned a verdict in favor of the appellees for $1,250.00. ...


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