Opinion
Decided March 29, 1926.
Real property — Vendor liable without proof of fraud or misrepresentation — Damages for failure to convey property described in sale contract.
Vendors unable to convey that which they had contracted to sell, because house sold extended one foot over adjoining lot, held liable without proof of fraud or intentional misrepresentation.
ERROR: Court of Appeals for Hamilton county.
Mr. J. Arthur Meyer, for plaintiff in error.
Mr. Charles Tatgenhorst, Jr., for defendants in error.
This case was tried to the court on an agreed statement of facts. Judgment was rendered for $500 under Section 5 of the agreed statement of facts. This action is prosecuted to reverse that judgment.
February 13, 1923, Luther T. Bosserman and Ella Bosserman, plaintiffs below, and the defendant, Amelia Leppert, entered into a written contract whereby the defendant agreed to sell to the plaintiffs a two-story house, No. 4125 Lora avenue, Cheviot, Ohio, for $5,500. The cash payment and deferred payments were agreed upon, and, on March 16, 1923, Amelia and Charles Leppert, by waranty deed, conveyed to Luther T. and Ella Bosserman the lot 40 x 100 feet mentioned in the written contract between the parties, and described in the deed. The Bossermans took possession, and moved in, making the property purchased their home. Shortly thereafter they discovered that one foot of the roof of the house and porch was not on the lot described in the deed, but extended over and was upon the adjoining lot owned by Louis La Saint.
The only question for determination here is the liability of the Lepperts for the sale of the two-story house and the transfer of the lot without mention being made of the house described in the contract. It is claimed that both parties supposed the house was entirely located on the lot described in the deed.
The plaintiff in error claims that there could not be a recovery unless it was shown that the representations were fraudulent, or that there was such gross neglect in making representations as amounted to fraud on the part of the vendor.
The defendants in error claim that, when it is shown that the seller of real estate has not transferred what he contracted to sell, he is liable without any proof of fraud or misrepresentation.
The office of the deed in this case was to execute the agreement on the part of the vendors. They had contracted to sell a two-story house by acceptance of a proposition made in this form:
"We hereby offer Charles Leppert $5,500 for two-story house, located No. 4125 Lora avenue, Cheviot, lot 40 x 150 feet. Good title to be given."
Vendees are claiming under this contract. The case of Mulvey v. King, 39 Ohio St. 491, which has been often followed and never overruled, settles the question of law involved in this case. There the court said:
"It may be considered as well settled in this state, by the cases above cited, that an action for damages caused by misrepresentation cannot ordinarily be maintained, without proof of actual fraud, or such gross negligence as amounts to fraud. When, however, a person claims the benefit of a contract into which he has induced another to enter by means of misrepresentations, however honestly made, the same principles cannot be applied. It is then only necessary to prove that the representation was material and substantial, affecting the identity, value or character of the subject-matter of the contract, that it was false, that the other party had a right to rely upon it, and that he was induced by it to make the contract, in order to entitle him to relief either by rescission of the contract or by recoupment in a suit brought to enforce it."
The judgment of the court below is therefore affirmed.
Judgment affirmed.
BUCHWALTER, P.J., HAMILTON and CUSHING, JJ., concur.