McCabe v. Burns

66 Pa. 356 | Pa. | 1870

The opinion of the court was delivered, January 3d 1871, by

Williams, J.

— This case does not come within the rule laid down in Pearsoll y. Chapin, 8 Wright 9, which decides that where a sale of land has been induced by the false and fraudulent representations of the vendor, the vendee must first tender a reconveyance before he can recover back the price paid. Here the plaintiff’s subscription, on which the money sought to be recovered was paid, was not' for land, but for stock in a company to he organized, of which the defendants were the promoters. The land purchased by the defendants was not conveyed to the plaintiff, and the other subscribers for stock, but to the Middletown Oil Co.; and if, as the evidence shows, the company was never incorporated, no estate passed by the conveyance, and the legal title still remains in the grantor. It is clear, then, that the plaintiff, under his contract of subscription, had no such legal or equitable interest in the land as made it his duty to tender a reconveyance or release before he can recover back the money which he paid on account of his subscription, if it was procured, as-alleged, by the false and fraudulent representations of the defendants. Nor was the plaintiff bound to make a tender of the stock for which he subscribed before he can recover back the money which he paid on his subscription, even if the rule laid down in Pearsoll v. Chapin is applicable to the sale of personal property, for no stock was ever issued to him. All that he received from the defendants was their receipt for the money which he paid, and he was not bound to surrender the evidence of its payment before he could recover the money back, if it had been fraudulently obtained. The court, therefore, erred in applying the rule to the\ contract of subscription in this case, and as there was abundant evidence to go to the jury, tending to show that the subscription was procured by the false and -fraudulent representations of the defendants, the question should have been submitted to them with proper instructions.

The evidence proposed to be given by the plaintiffs, under their second and third offers, markéd “B” and “ C,” should have been received. At the time these Sffers were made and rejected by the court, the plaintiff had given evidence tending to show that the defendants acted in concert in procuring, from the plaintiff and others, subscriptions for stock in the company they proposed to organize, and that both had made false representations in regard to the location of the land, and the price for which it could be obtained, and the consideration actually paid for it. Under this state of the evidence, it was competent for the plaintiff to show the acts and declarations of either of the defendants, whether done or made in the presence or absence óf the plaintiff, or of each other, if they tended to corroborate' the'testimony already received, or to shed any light on the character of the transaction. We think that the evidence offered by the- plaintiff was both relevant to the issue and corroborative of the testimony already given.

Our only doubt in regard to. the fifth offer, marked “E,” arises from the fact that it does not clearly appear, from the language of the offer, that the plaintiff was one of the parties referred to as having abandoned the property,'after-they discovered that the representations made by the defendants, at the time they ad-' vanced the money, were untrue. If the plaintiff was one of the parties intended by the offer, the evidence ought to have been received, for it tended to show- a rescission of the contract on his part, and the defendants’ acquiescence therein by taking possession of the personal property on the premises and disposing of it as their own. But if the plaintiff was not one of the parties referred to, the offer was properly overruled. It is so doubtful whether the offei’, as made] included .the plaintiff, that we cannot say that the court erred in' ovérruling it.

We see no error in the rejection of the other offers of evidence of which the plaintiff has any reason to complain.

But for the errors in overruling the offers of evidence particularly noticed, and in refusing to set aside the judgment of non-suit, the judgment must he reversed and the record remitted for a new trial.

Judgment reversed, and a procedendo awarded.