Griffith v. Herr , 17 Pa. Super. 601 ( 1901 )

Opinion by

William W. Porter, J.,

This action is upon a promissory note given by the defendants to the plaintiff as part of the purchase money (due by M. M. Herr, one of the defendants) for the stock and fixtures of a millinery store. The sale was not hastily consummated. Ample opportunity was given to the purchaser to inspect. A written agreement prepared by the purchaser’s brother, H. L. Herr, was entered into setting forth the manner in which an inventory should be taken and a valuation put upon the goods. H. L. Herr (a business man of some experience) participated in the transaction and aided his sister by his judgment, in the labor of making out the inventory of the goods and in seeing that the valuations were properly put upon them by the plaintiff in accordance with the terms of the agreement. The buyer and seller were at the inception of the transaction, strangers to each other. The first overture came from the buyer.' They dealt throughout practically at arm’s length. There was no assumption by the vendor of a position of confidence toward the vendee although it is alleged that the seller was told that neither the buyer nor her brother had any knowledge of the millinery business. The facts recited show that the case presented was one to which the doctrine caveat emptor clearly was applicable: Selser v. Roberts, 105 Pa. 245. This being true the learned trial judge was right in excluding testimony offered tending to show that the goods purchased were of less value than the defendant paid. The defendant and her brother as we have seen both participated in the work of making up the inventory and appraisement. The stock and the private marks of the seller were over a considerable period open to inspection. If the defendants were ignorant of the values it was their misfortune. It was open to them to secure expert assistance had they desired. Nothing offered to be shown by the defendants amounts to fraud on the part of the plaintiff whose assertions as to the value of the stock were not beyond the commendation which a vendor is permitted to put upon goods offered for sale and susceptible of inspection. It is contended that representations were made as to the amount of business theretofore done by the plaintiff; that these were false and that they were to the injury of the defendant. It. is to be observed that the defendant did not buy a business but stock and fixtures; that no purchase was made of good will and that the book containing the plaintiff’s sales covering a period of two or three years preceding the sale was exhibited to the defendant, M. M. Herr, and to her brother. These facts we think answer the defendant’s contention. Although in the book the amounts of sales were not carried forward to a total, the defendants might by the simplest of calculations have determined the accuracy of the statements of the plaintiff in this regard.

We are of opinion that no error was committed at the trial. It may even be that the learned judge would have been justified in withholding from the jury the one question he submitted, namely, as to a possible fraud growing out of some apparent and insignificant changes on the cost markings on some of the goods: Kreamer v. Smith, 187 Pa. 211. Without noticing the twenty-one assignments in detail we affirm the judgment.