90 Pa. 359 | Pa. | 1879
delivered the opinion of the court,
The only assignment of error that has particularly drawn our attention in this case, is that embracing the answer to the plaintiff’s fifth point. 'Complaint is made that the answer is not responsive to the point, and this, we think, is well founded. It only remains for us to consider whether the plaintiff wras entitled to an affirmative answer, for if not, if it might have-been negatived or refused; then he has nothing of which to complain. The point is as follows: “Even if the jury should believe that Fenn relied upon the statements as to the value of the stock, made by the plaintiff, yet if they were made in good faith, and constituted - the latter’s real opinion as to such value, though the estimate might have been too
It will be observed that this point is put upon the ground that Eenn relied upon the statements concerning the value of the property, made by 'Bower, and, consequently, that he dealt upon the faith of those representations. ■ This, of course, means that Fenn was induced to depend upon Bower’s knowledge of the stock, and to trust to that knowledge rather than to information which he might have" acquired by an inventory,'or by other means. This statement of the questipn, however, settles the controversy adversely to the point put,‘for\iff, as the jury have found, the statements, made by the plaintiff, of the value of the property, Avere false in fact, his belief, that they were true, was of no consequence; for, because of such belief, they were none the less false, neither was Fenn the less deceived thereby. If BoAver chose to permit Fenn to contract wdth him, on the faith of his statements of value, he was bound not merely to believe, but to know, that they Avere true. 'This very point is ruled in the case of Fisher v. Worrall, 5 W. & S. 478, Avherein it was held, that a misrepresentation by a vendor of an occult quality in land, though it may have been made in ignorance of the truth, and although the vendee agreed to run the risk of this, Avas, in an action for the recovery of the purehase-money, a decisive objection to the plaintiff’s recovery. Here, as in-the case in hand, the contract resulted from the plaintiff’s representations, Avhich, in the end, turned out not to be true; without these, the contract never would have been made; hence, without regard to his belief, the plaintiff Avas responsible for their verity. -IThe best,. indeed, that can be said for Bcjvíer is, that he asserted for truth Avhat he did not know to be so, but this, as is ruled in the case.-above cited, is equivalent to the assertion of a knoAvn falsehood, v''
Weist v. Grant, 21 P. F. Smith 95, and Watts v. Cummins, 9 Id. 85, have been cited in support of the point under consideration, but in both these cases Fisher v. Worrall is recognised as authority, and the cases are so clearly distinguished, by Mr. Justice Agneav, Avho delivered the opinions in the two first named, that it is unnecessary for us to attempt a re-discussion of the subject.
The conditional verdict, as directed by the court, and the judgment entered thereon, are wrong and must be corrected. As was said in Fluck v. Replogle, 1 Harris 405, “ There is no necessity for a conditional verdict. Indeed it would be unjust for the jury to prescribe conditions by delaying the payment of money already due, and thereby impairing the security.” It is, indeed, difficult to see hoAv the verdict, as rendered in this case, can be enforced. It gives the plaintiff no right to enter upon the premises, neither could default in payment bar the defendant’s equity of redemption. It is true, the verdict provides for a levari facias on the' non-pay
Subject to the amendment as above stated, the judgment is affirmed.
