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Littler v. Dunbar

Supreme Court of Pennsylvania
Jun 26, 1950
365 Pa. 277 (Pa. 1950)

Summary

approving reasoning on this point

Summary of this case from Eisenberg v. Gagnon

Opinion

May 25, 1950.

June 26, 1950.

Torts — Deceit — Misrepresentation by agent — Knowledge of principal.

1. A principal is not liable in deceit for his agent's false representations where he has not authorized nor participated in them nor knowingly permitted the agent to make them. [278]

Assumpsit — Contracts — Principal and agent — Misrepresentation by agent of vendor — Rescission.

2. One who has been induced to enter into a contract by material false representations of the other party's agent may rescind the contract and may, in an action of assumpsit, recover from the innocent principal that portion of the consideration which has been received by him. [278-9]

Practice — Pleadings — Form of action — Amendment — Act of May 10, 1871, P. L. 265.

3. Under the Act of May 10, 1871, P. L. 265, the form of an action is amendable at any stage of the proceedings. [279-80]

4. Where a plaintiff erroneously brings a suit in trespass for fraud and deceit and recovers a verdict in an amount which could have been properly recovered in a suit in assumpsit, judgment should be entered on the verdict.

Before DREW, C. J., STERN, STEARNE, JONES and BELL, JJ.

Appeal, No. 82, March T., 1950, from judgment of Superior Court No. 118, April T., 1949, reversing judgment of Court of Common Pleas of Allegheny County, July T., 1946, No. 513, in case of Margaret Lanzetta Littler, Exrx., Estate of Carl W. Littler, Deceased et al v. Everett B. Dunbar, trading as Acme Real Estate Company et al. Judgment reversed; reargument refused August 16, 1950.

Same case in Superior Court: 166 Pa. Super. 271.

Trespass for fraud and deceit. Before PATTERSON, J.

Compulsory nonsuit entered as to defendant Trilli Dunbar Company; verdict for plaintiffs and against defendant, Dunbar, and judgment entered thereon. Defendant, Dunbar, appealed to the Superior Court, which reversed the judgment of the court below. Appeal by plaintiffs to Supreme Court allowed.

Louis Vaira, for appellants.

John A. Metz, Jr., with him John A. Metz and Metz Metz, for appellees.


The appeal is from the judgment of the Superior Court, reversing the judgment of the court of common pleas of Allegheny County. The suit is in trespass for fraud and deceit. Defendant is a real estate broker. The fraud and deceit charged by plaintiffs consists of alleged misrepresentations of defendant's agent in connection with a contract for the sale of real estate. A trial on the merits resulted in a verdict for the plaintiffs for the amount of the down money and interest, which the court below sustained. On appeal to the Superior Court the judgment was reversed in a unanimous opinion by Judge HIRT, 166 Pa. Super. 271. The basic reason for the reversal is stated in the opinion, at p. 273, as follows:

"Under the Pennsylvania rule a principal is not liable in deceit for his agent's false representations where he has not authorized nor participated in them nor knowingly permitted the agent to make them. Proof of scienter on the part of the principal at the time of the misrepresentation is an essential part of the plaintiffs' case."

It was further stated in the opinion, at p. 274: "The plaintiffs were within their rights in rescinding the contract induced by the false representations of defendant's agent. Sutton v. Morgan et al., 158 Pa. 204, 27 A. 894; Meyerhoff v. Daniels, 173 Pa. 555, 34 A. 298. If then they had sued in assumpsit, on the theory of money had and received, they would have brought themselves squarely within the rule of Ohlbaum v. Mayer et ux., 285 Pa. 260, 131 A. 858 and would have been entitled to recover against this appellant since he benefited by his agent's fraud and kept the hand payment."

We are in complete accord with the opinion for the reasons given and cases cited.

But in Lichow v. Sowers, 334 Pa. 353, 6 A.2d 285, this Court held that under the Act of May 10, 1871, P. L. 265, the form of an action is amendable at any stage of the proceedings. Mr. Justice HORACE STERN said, p. 355: "Probably a suit in assumpsit would have been more appropriate, but the form of action is amendable at any stage of the proceedings: Act of May 10, 1871, P. L. 265; New York Pennsylvania Co. v. New York Central R. R. Co., 267 Pa. 64, 76, 77."

See also Joynes to use v. Pennsylvania Railroad Company, 234 Pa. 321, 83 A. 318; New York Pennsylvania Co. v. New York Central R. R., 267 Pa. 64, 110 A. 286; Miners Savings Bank of Pittston v. Naylor, 342 Pa. 273, 20 A.2d 287; Montgomery, Admr., v. Keystone Mutual Casualty Company, 357 Pa. 223, 53 A.2d 539; Bell Telephone Company of Pennsylvania v. Baltimore Ohio Railroad Company, 155 Pa. Super. 286, 38 A.2d 732. Cf. Pennsylvania Rules of Civil Procedure, Rule 1033.

We deem it unnecessary to remit this case for the purpose of amending the form of action and for a new trial. Judge HIRT, in his opinion, correctly states that assumpsit was the correct form of action, and the jury has already determined that the plaintiffs are entitled to recover the down money and interest thereon. As was said by the Superior Court in Bell Telephone Company of Pennsylvania v. Baltimore Ohio Railroad Company, 155 Pa. Super. 286, at p. 289, 38 A.2d 732: "Scarcely any procedural defect is viewed with greater tolerance by modern courts than errors in the form of the action."

Also: "When the facts ultimately proved are properly alleged and there has been a trial on the merits pleadings are not of much, if any, account: Readdy v. Borough of Shamokin, 137 Pa. 92, 20 A. 424. If it is expedient, as a nod to formalism, the proper amendment will be considered to be made: Nock v. Coca Cola Bottling Co., 102 Pa. Super. 515, 520, 156 A. 537, and cases cited."

The judgment of the Superior Court is reversed and the record is remitted to the court below with directions to enter judgment for the plaintiffs on the verdict.


Summaries of

Littler v. Dunbar

Supreme Court of Pennsylvania
Jun 26, 1950
365 Pa. 277 (Pa. 1950)

approving reasoning on this point

Summary of this case from Eisenberg v. Gagnon

In Littler v. Dunbar, 365 Pa. 277, 74 A.2d 650, an agent made false representations which were unauthorized and unknown to his principal.

Summary of this case from Gedekoh v. Peoples Natural Gas Co.
Case details for

Littler v. Dunbar

Case Details

Full title:Littler, Exrx., et al., Appellants, v. Dunbar et al

Court:Supreme Court of Pennsylvania

Date published: Jun 26, 1950

Citations

365 Pa. 277 (Pa. 1950)
74 A.2d 650

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