Byrne v. Stewart

| Pa. | Mar 4, 1889

Opinion,

Mr. Justice McCollum :

Samuel Stewart, the plaintiff below, sold to Owen Byrne and Joseph T. Byrne the fixtures and good-will of a meat shop, on Ridge avenue in Philadelphia, for $1,500, and received the note in suit in part payment of the price. Peter Byrne, the defendant below, is a brother of the purchasers, and indorsed the note for their accommodation, and on the representation of Stewart as to the cost and value of the fixtures and the amount of business he did there. He had no interest in the purchase, and was a mere surety for his brothers, as Stewart well knew. On the trial in the court below, it was proven without objection that Sfewart, as an inducement to the purchase by the Byrnes, said that he had made $1,900 there in six weeks ; that the icebox cost him and was worth $800, and that the Byrnes could clear in the business $150 a week. The defendant then offered to prove the value of the fixtures, what they could have been put in for, and what William Wein afterwards paid for them. The proposed evidence was objected to and rejected, and upon its exclusion specifications one, two, and three rest. We cannot say that the court erred in refusing to receive this evidence. It related to the value of articles within the observation of the purchasers. It did not controvert any statement by the vendor of a material fact, nor authorize an inference of fraud in the sale. It might have shown that the fixtures were not worth as much as represented, but an overestimate by a vendor of the value of an article which he sells, does not create' a cause of action against him, or a defence to a suit for the price agreed to be paid for it. The first, second, and third specifications of error are not sustained.

But while the defendant’s offer to show the value of the fixtures was rejected, the plaintiff was permitted, under objection by defendant, to prove the value of the property sold by him, and that it Avas worth all that the Byrnes agreed to pay for it. From the evidence produced on this branch of the plaintiff’s case, it is apparent that the “ good-will ” Avas an essential part of the subject of the sale. The Avitnesses based their estimates of the value of the property sold to the Byrnes, on the amount of business done there by Stewart. This Avas a matter peculiarly within the knowledge of the vendor, and not easily ascertainable by the vendees. They had the right to rely on his representation respecting it. If. his statement in this particular was false, and induced them to buy the property, it would furnish at least a partial defence to an action for its price.

Thomas Hughes, a witness for the plaintiff, testified that he worked in the meat shop a month before, and up to the sale, and that the property “ was worth every dollar the Byrnes gave for it.” Defendant’s counsel proposed to ask him on cross-examination if he “ Avas familiar with the store when Stewart had it, and hoAv much business was done there,” and to this an objection'was made and sustained. As the “ good-will ” was embraced in the sale, and its value was dependent on the business it represented, this inquiry Avas material and pertinent, and its prohibition was error. The fourth specification is therefore sustained.

The fifth and sixth specifications are not in compliance with ■ the rule of court, and require no consideration.

Judgment reversed, and a venire facias de novo awarded.