Applegarth v. Robertson

Robinson, J., delivered the opinion of the Court. There cannot be, it seems to us, any difficulty in this case. The suit is brought on a promissory note of $250, made by the appellee, and endorsed by the payee, Cone, to the appellant. The note was given to Cone in part payment of the purchase money of a. house, and as a defence to the action, the appellee alleges that the gahle wall of the house was, at the time he bought it, defective and unsafe, in consequence of which he was obliged to tear it down and rebuild it, at an expense of $1200.

That Cone falsely and fraudulently represented the “ wall to be as solid and safe as any wall in the city,” upon the faith of which representations the appellee was induced to buy the house, and that the appellant took the note with full knowledge of its infirmity. ■ The first question, then, is whether there is any evidence from which the jury could reasonably find that the wall was defective and dangerous ? It was an ordinary nine-inch gable wall, with no less than twelve windows, sixty feet long and forty feet high. The proof shows that it had bulged several inches, and upon an examina ⁴⁹⁵ tion by- the City Inspector, Elder, it was condemned as being unsafe and dangerous, and the appellee was thereupon directed to have it taken down, in pursuance of the requirements of the City Code. In addition to this, the witness Weber, an architect of twenty-eight years experience, and at one time a builder, made a careful examination of the wall, and reported it as being unsafe.

The appellant offered evidence tending to show that the wall, although bulged, was perfectly safe; but we are not dealing with the weight of the evidence. That was a question for the jury. Our inquiry is whether there was any evidence from which the jury could find that the wall was unsafe, and as to this question we have no difficulty whatever. If the evidence offered by the appellee was believed by the jury, there could be no escape from the conclusion that the wall was defective and unsafe.

Then as to the false and fraudulent representations alleged to have been made by Cone. The appellee, in his testimony, says ho did not see the bulge in the wall, but noticed that it was a very long wall, and full of windows, and was therefore induced to make some inquiry of Cone about it, to which he replied that it was as safe and solid as any wall in the city. The witness, R. W. Robertson, testifies he heard Cone tell the appellee that it was a first-class wall, and that he would guarantee it to be as good as any wall in Baltimore. Now the proof shows there was a bulge in the wall at that time of at least three and a half inches, and that subsequently, upon an examination by the City Inspector, it was condemned as. being dangerous; and, in addition to this, we have the testimony of Weber, the architect, who made a thorough examination of the wall, and was of the opinion that it was' unsafe.

Cone, too, was himself a builder of large experience, and whether the representations in regard to the condition of the wall were made by him in good faith, was, we think, under all the circumstances, a question for the jury. ⁴⁹⁶ And as the appellant lmew when lie.bought the note, that the appellee had sued Cone to recover damages by reason of Cone’s misrepresentations in regard to the wall, he must be considered as a purchaser of the note with knowledge -of its infirmity. But then again it was pressed in argument, and ■strongly too, that the appellee was precluded from setting up the defective condition of the wall as a defence in this suit, because he had sued Cone to