65 Pa. 496 | Pa. | 1870
The opinion of the court was delivered, July 7th 1870, by
There have been twenty errors assigned on this record; but as the counsel for the plaintiff concede in their printed argument, all those which are founded upon the charge and the answers of the court to the points presented are resolvable into two questions. The first is as to the character of the relation between the parties, and the second as to the effect of the Act of
The action was instituted to recover from the defendant as administrator of William M. Beetem, who in his lifetime was cashier of the Carlisle Deposit Bank, the sum of §8000 alleged to have been paid to him by the plaintiff as the consideration for the purchase of sixty shares of stock of the Glenville Coal Company. The ground of it was that the contract of sale was fraudulent or illegal, and the plaintiff claimed the right to rescind it and recover back the purchase-money.
The evidence was very bald and meagre as to the circumstances of the sale. It tended to show that Beetem was the owner of 800 shares of the stock, which he had transferred to Spencer, Yila & Co. of Boston to hold for him: then a transfer of sixty of the shares by them to the plaintiff, dated January 18th 1865, and the payment by the plaintiff to Beetem of §2499.84 by a cheek dated February 4th 1865, and a note of the plaintiff of the same date, to the order of and endorsed by G. W. Hilton, for §500, which was deposited by Beetem in the Carlisle Deposit Bank as cash and paid April 8th 1865. In addition there were in evidence letters from Beetem to his brokers in Philadelphia, relating to the purchase for him of the 800 shares, from which it might be inferred that at the close of the year 1864 he apprehended loss by the investment or speculation. On the supposition that Burk-holder and Beetem were simply vendor and vendee there certainly was no evidence of any misrepresentation or fraud in the sale. Beetem bought the stock at §40 a share, and his mere expression of an apprehension that he would lose certainly did not even tend to prove that he had used any deceit in the subsequent disposition. It was urged that the fact that the stock stood in the names of Spencer, Yila & Co., and that the transfer was direct from them to the plaintiff, was sufficient primá facie to authorize the inference that Beetem had acted as the agent of Burkholder in making the purchase, and had concealed from him the fact that he was the beneficial owner. Substantially the court in their answer to the plaintiff’s sixth point, submitted this question to the jury. “If Mr. Beetem in place of making a purchase of the stock for Mr. Burkholder, in fact had stock, which he then held, assigned through another to Mr. Burkholder at greatly more than he knew to be its actual value, this would authorize a rescission of the contract by Mr. Burkholder and a recovery of the money paid by him to Beetem.” There was no evidence in the case, as the court properly instructed the jury in their charge, to show any agreement, contract or representation between the parties in reference to the purchase of stock by Beetem for the plaintiff. The first four assignments of error are therefore not sustained.
But the more important question in the cause is as to the effect
We see no error in the several bills of exceptions on account of the rejection of testimony. The imaginations, thoughts, impressions and presumptions of witnesses who know nothing of the facts are surely inadmissible. When a witness states in a deposition no material facts, but denies his knowledge of any of the matters inquired of, the whole may be rejected as irrelevant, unless some special object is to be attained by showing his want of knowledge. That does not appear in regard to Earley’s deposition ; at least it was not stated that it was offered for that purpose. Transactions by Beetem with other persons, or representations made by him to
There were several counts in the declaration, some in form ex contractu, and one in tort. At the opening of the cause the court required the plaintiff to elect on which counts he would proceed. The plaintiff then elected to proceed on the counts in assumpsit, and excepted to the ruling of the court. This is certainly a novel proceeding. I have looked in vain through the books for any precedent or authority to justify it. The mode of taking advantage of a misjoinder of counts is by demurrer in the first instance. The English books say that the declaration will be bad on general demurrer, in arrest of judgment or upon error: 1 Chitty on Pl. 206; 1 Saund. PL & Ev. 418; Brigden v. Parkes, 2 Bos. & Pul. 424. But in Martin v. Stille, 3 Whart. 337, in very much such a misjoinder as here, it was held that it could only be taken advantage of by special demurrer. In some cases in England a misjoinder will be aided by intendment after verdict: 1 Saund. Pl. & Ev. 418. If the defendant chooses to plead in bar, and go to trial on such a declaration, there is no authority in the judge to strike out any count, or to put the plaintiff to his election between a count in assumpsit and another in tort. For this error, however, we would not reverse; for it is plain that it did the plaintiff no harm. There was no evidence which he could have given under the count which he abandoned which was not admissible under the money counts.
Judgment reversed, and venire facias de novo awarded.