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RONALD C. SANDS AND EVELYN L. SANDS v. JOSEPH I. FORREST AND RUTH B. FORREST (08/14/81)

filed: August 14, 1981.

RONALD C. SANDS AND EVELYN L. SANDS, HIS WIFE, APPELLANTS,
v.
JOSEPH I. FORREST AND RUTH B. FORREST, HIS WIFE



No. 1387 Philadelphia, 1980, Appeal from Judgment entered in the Court of Common Pleas, Civil Division, of Berks County, No. 219 November Term, 1975.

COUNSEL

Kenneth E. Sands, Jr., Reading, for appellants.

Peter F. Cianci, Reading, for appellees.

Price, Wieand and Hoffman, JJ.

Author: Wieand

[ 290 Pa. Super. Page 49]

During the trial of a trespass action for fraud and deceit, the trial court found that plaintiffs had alleged an incorrect measure of damages, denied a motion to amend the averment of damages, and directed a verdict for defendants

[ 290 Pa. Super. Page 50]

    because plaintiffs had failed to prove damages. This appeal was taken from the judgment entered following a denial of plaintiffs' motion for new trial.

The transaction which gave rise to the instant litigation was the purchase of a farm property in rural Berks County. The property was shown to appellants, Ronald C. and Evelyn L. Sands, by a realtor in the summer of 1973. An agreement of sale was signed in October, 1973, and allocated a purchase price of $85,000.00 between real estate ($60,000.00) and personalty ($25,000.00). The items of personalty included swimming pool equipment, wooden fencing for a riding area, storm windows and screens. After appellants took possession of the property, they found it to be in need of substantial repair and also found that they had not received various items of personalty which they expected to receive. An action based on fraudulent misrepresentations allegedly made by the sellers, Joseph I. and Ruth B. Forrest, was commenced, in which appellants claimed as damages the costs of making necessary repairs to the real estate and the costs of acquiring the missing personalty. These damages were alleged to be $40,000.00.

At trial, appellants showed that appellees had represented the property to be in good condition and had said that the barn was supplied with water and electricity, that storm windows and screens were stored on the premises, and that the wooden riding ring was being sold with the real estate. Mr. Sands also testified that he had been told by appellees that no flooding had occurred on the property, that roof leaks had been repaired, and that the swimming pool was in perfect condition. These representations, appellants contended and their evidence attempted to show, were false.*fn1 When appellants attempted to show the cost of repairing the premises and replacing missing personalty, appellees objected that the cost of making repairs was not the proper

[ 290 Pa. Super. Page 51]

    measure of damages. The trial court sustained the objection, holding that the correct measure of damages was the difference between the actual value of the property and its value if it had been as represented by appellees. Appellants' counsel thereupon moved to amend the complaint and offered to produce evidence of the value of the property in the condition found by appellants when they took possession. The motion was denied, appellants were forced to rest, and a directed verdict was entered in favor of appellees.

The law in Pennsylvania is clear that in an action for fraud and deceit the measure of damages is the difference in value between the real, or market, value of the property at the time of the transaction and the higher, or fictitious, value which the buyer was induced to pay for it. Tilghman v. Dollenberg, 418 Pa. 604, 213 A.2d 324 (1965); Neuman v. Corn Exchange National Bank and Trust Co., 356 Pa. 442, 51 A.2d 759 (1947); Peters v. Stroudsburg Trust Co., 348 Pa. 451, 35 A.2d 341 (1944). See also: Baldassari v. Baldassari, 278 Pa. Super. 312, 420 ...


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