
    Musser v. Shenk, Appellant.
    
      Argued March 21, 1960.
    Before Rhodes, P. J., Gunther, Wrigi-it, Woodside, Ervin, Watkins, and Montgomery, JJ.
    
      William G. Storlj, with him Stein, Storl) and Mann, for appellant.
    
      W. Sensei Broten, with him Brotan & Zimmerman, for appellee.
    June 15, 1960:
   Opinion by

Gunther, J.,

This appeal is from the refusal of motions for judgment n.o.v. and for a new trial in a trespass action brought to recover damages for fraudulent misrepresentation involved in the purchase of a certain piece of real estate.

On July 21, 1957, appellees, Elias C. Musser and Elizabeth T. Musser, his wife, purchased from appellant, Lee M. Shenk, a home in West Lampeter Township, Lancaster County, for the sum of $15,300.00. The source of water supply for this home came from a well which the vendor had drilled during the course of construction of the property.

Previous to the sale of this property, during the month of June, 1957, appellees contacted appellant and discussed various features of the home. They specifically asked about the water supply and its adequacy to meet their household requirements. Appellant informed appellees that the water supply would meet their normal family use and that the well would supply a sufficient amount of water for cooking, drinking, bathing and laundry purposes. Again on June 21, 1957, appellees raised the question of an adequate water supply for their family use, informing appellant that the family consisted of four members, and again appellant represented that the well would supply a sufficient amount of water to meet normal family use but that the water would be insufficient to take care of extended lawn sprinkling or car washes. Based upon such representations, appellees entered into a sales agreement for the purchase of the home and subsequently consummated the sale.

Appellees moved into the new home on July 27, 1957 and discovered, after using a small amount of water for cleaning up the cellar, letting water for two baths, and washing up the evening dishes, that no further water was available. The next day a plumber was called out to ascertain the cause for the lack of water, and at that time it Avas ascertained that the well had gone dry. Appellant Avas present on this occasion and Avhen he was asked Avhat Avas going to be done about this situation, he informed appellees that this was their problem.

Appellant persisted in his refusal to accept responsibility for the lack of Avater and a suit for damages was filed in June, 1958. After trial, the jury returned a verdict in favor of the appellees for fl,250.00. Motions for judgment n.o.v. and for a neAV trial Avere refused.

The verdict of the jury haAÚng been rendered in favor of the complaining party, the sole issue on this appeal is whether either judgment n.o.v. or a new trial should have been granted in this case.

Where the jury has found for plaintiff, under proper instructions from the trial court, the appellate court is required to read the record in the light most favorable to plaintiff, and judgment n.o.v. should be entered only if reasonable minds cannot differ as to the validity of the defendant’s position. Aquino v. Bulletin Co., 190 Pa. Superior Ct. 528, 154 A. 2d 422; Christensen v. Philadelphia Transportation Co., 191 Pa. Superior Ct. 28, 155 A. 2d 400; Yorston v. Pennell, 397 Pa. 28, 153 A. 2d 255. A review of the evidence discloses that there was sufficient evidence to warrant the jury’s verdict. Appellees testified that when they questioned appellant in regard to an adequate water supply, they were informed and appellant represented that they wouldn’t have to worry about it, that they had full water supply to take care of the full facilities of the house. William C. Myers, a professional well-digger testified that when the well in question was drilled down to a depth of 140 feet, appellant told him to stop drilling deeper although he knew that the well produced a half gallon of water per minute. Appellant stated that such a flow would be sufficient to supply a home. The evidence further disclosed that appellees had no experience with rural houses and water supplies since they had always lived in the city. They had to rely on the representations of appellant. Even appellant admitted that the Avater problem came up several times: “Q. One of their main concerns Avhen they Avere dealing with you to buy the house Avas the Avater supply Avasn’t it? A. They asked about that practically every time. Q. They asked about that as much as they did the construction of the property and about seAvage and any other important features of the house, didn’t they? A. I Avould say they rather pushed the water issue ratlier hard. Q. That’s exactly right. And did you ever tell them that all the supply they had was a half gallon a minute? A. No, sir.”

Appellant contends that appellees failed to prove fraud on his part and that the court below should have affirmed his point for binding instruction. He contends that the evidence showed that the Avell failed because of the heavy drought. IIoAvever, the eA'idence disclosed that appellees did get a Avell drilled with sufficient AA'ater supply at or about the time the Avell in question Avent dry. Even in the absence of fraud, Ave belieA'e the misrepresentation here made to be actionable. Had appellees known about the actual floAV of Avater per minute, it is unlikely that they Avould have entered into the agreement to purchase. We believe this information Avithheld Avas material and, in vieAV of the representation made, appellees Avere entitled to rely on the fact that the Avell Avould produce Avater necessary for normal family use. Appellant either knew his representations were false or kneAv that he did not possess enough information on which to make the representations. He knew that appellees Avere looking for a full disclosure of facts and he Avithheld the vital fact AAdiicli could have disclosed immediately the poor source of water supply even under the best of conditions. Fraud arises Avliere the misrepresentation is knowingly false, where there is an intentional concealment calculated to deceiA7e. DeJoseph v. Zambelli, 392 Pa. 24, 139 A. 2d 644; Restatement, Contracts, sections 470, 471, 476.

There are no trial errors alleged. Only a general exception was taken to the charge. However, appellant contends that the verdict Avas against the Aveight of the evidence. In considering this contention, Ave must consider all of the evidence and assess its Aveight to determine whether the court beloAV abused its discretion in refusing a new trial. Jemison v. Pfeifer, 397 Pa. 81, 152 A. 2d 697. While some of the evidence was conflicting, this does not entitle one to a new trial. Such evidence only creates doubt which must be resolved by the jury. Our review of the evidence discloses no abuse of discretion and we agree with the court below that the weight of the evidence did not so preponderate in favor of the appellant so as to require that the verdict of the jury be set aside. See Seidel v. Borough of Yeadon, 191 Pa. Superior Ct. 45, 155 A. 2d 370.

Judgment is affirmed.  