McMahon v. Spitzer , 6 Ohio Law. Abs. 609 ( 1928 )

RICHARDS, J.

The evidence has had the careful consideration of this court and from this evidence the court is convinced that the property was represented to the defendant by plaintiff’s agent to be vacant and that the amount represented by him to defendant as rental was not the rent named in the leases but was that rent plus 8% interest on the amount advanced by plaintiff for the purpose of erecting a gas-filling station on the lots. Although the gas station had been erected before Kane and the defendant inspected the property, the former expressed surprise that they had it erected, and when Spitzer inquired if the oil company had the right to remove it at the expiration of the lease, Kane replied he didn’t know. The statements made by Kane and the circumstances show that the defendant believed and was justified in believing that the oil company had erected the station. The fact that a tenant is in possession of property offered for sale does not remove it from the realm of those things about which false representations may be made.

We think it clear from the evidence in this case that the defendant’s offer of $27,000.00 was made by reason of representations of plaintiff’s agent regarding the property and the lease thereon, and these representations were not justified by the facts, and although the plaintiff did not himself have knowledge of such representations, yet, in seeking the benefit of the contract made by his agent, he is bound by the representations so made. Mulvey v. King, 39 Ohio St., 491.

The offer made by the defendant and accepted by the plaintiff included as one of its conditions a provision that the abstract should be to the satisfaction of defendant’s attorneys, and that the lease should also have their approval. The attorneys, acting in good faith and on sufficient cause, declined to approve the abstract or opinion of title and declined to approve the lease, and their decision was final.

For the reasons given the petition will be dismissed and a decree entered for the defendant.

(Williams and Lloyd, JJ., concur.)