Davis v. Hawkins, 163 Pa. 228

Davis v. Hawkins

163 Pa. 228 | Pa. | 1894

Opinion by

Mb. Justice Mitcheel,

The referee found only a constructive fraud by the defendant, and the action was therefore barred by the statute of limitations which in such cases begins to run from the date of-the act committed. Hollinshead’s Appeal, 103 Pa. 158, 165.

But the -learned judge below was entirely right in holding that there was no sufficient evidence of fraud at all. The plaintiff’s whole cause of action hinges, on the narrow question *233of fact whether defendant represented that he had a “ power of attorney ” or merely an “ authority ” to sell. If the latter then' there was no fraud, for it is clear that he had verbal authority and that his arrangement with plaintiff was ratified by Mackey. But even if the defendant represented that he had a power, or a warrant of attorney, the weight of the evidence is that plaintiff knew the whole situation and was not in any way deceived. Defendant had a written letter of attorney from Mackey, duly recorded, giving him authority to lease and managé the property, collect the rents, etc., but not 'extending to a power to sell, and plaintiff himself testified that defendant told him “ he had no power of attorney to sell ” but was going to Philadelphia to see Mackey, and subsequently said “he had got it fixed all right.” As well and tersely stated by the learned judge below, “ we have the undisputed fact that Davis knew it was Mackey’s land, and also knew that Hawkins’s power of attorney did not authorize him to sell and convey land, and when Hawkins told him Mackey authorized him to sell it, and produced no written authority, the inference is irresistible that Davis knew Hawkins’s authority was by parol.” The whole evidence shows that the transaction was conducted in a loose and informal waju By the contract as set forth in the receipt for the first payment, the rest of the purchase money was to be paid at stipulated times and amounts, the last being three hundred and fifty dollars due July 1,1878. There is no pretence that these terms were complied with by plaintiff. On the contrary his payments were irregular both as to time and as to amount, and the last one was never made in full at all, though nearly twelve years elapsed between the time it was due and the bringing of this suit. In the meantime Mackey had died, and his heirs for a time at least disclaimed any interest in the land. The whole matter was allowed to run on at the loosest possible ends. Whatever may be the rights of Mackey’s heirs or representatives to an account from defendant for tlieSnoney paid him by plaintiff, it is entirely clear that there was no such fraud on the latter as prevented the running of the statute of limitations against his claim, even as to money paid after' Mackey’s death, when defendant’s authority, whatever it was, had expired.

The defendant was an entirely competent witness. The *234tiling in controversy was a transaction between the parties, both living. Mackey’s representatives were not parties or privies to the action, and would not be affected in any way by the result of it. ■ •

Judgment affirmed.