25 Pa. Super. 106 | Pa. Super. Ct. | 1904
Opinion by
If these cases turned merely on what took place between
It clearly appears, however, that the purchase from Miller was but part of.a larger scheme, depending for its accomplishment on bad faith, deceit and trickery on the part of Fulmer and Fink? The lot mentioned in the contract was in rear of a
The allegation of a conspiracy between Fulmer and Fink to obtain the property for Fink by the methods described is not material in law. With respect to a civil action, when two or more engage in a tort, their concert of action, though having the aspect of a conspiracy, is not an essential element of the case, and its effect is merely to make them joint wrongdoers. The gravamen of the action is the injury done to the plaintiff: Laverty v. Vanarsdale, 65 Pa. 507. In those cases the material question is whether the plaintiff has suffered an actionable wrong, through the acts of the defendants, for which he is entitled to redress.
Here Miller, through a subterfuge on the part of Fulmer and Fink, was inveigled into a contract which he could not have been led to make had he known its real design, the artifice resorted to for the purpose being concealed through falsehood and deceit verging on legal culpability. While the falsehood employed in the transaction may be viewed in the nature of a gratis dictum, not to be taken seriously unless made a contractual stipulation; as the venial lie of commerce, and not the mortal lie of fraud in law, fatal to the contract which it infects ; presenting no legal ground for avoiding the agreement of the parties; it may be considered by a court of equity where conscience and good faith may sway as the bal
In the case of Miller v. Fulmer and Fink, the decree directing cancelation of the contract is reversed and the bill dismissed. In the case of Fulmer and Fink v. Miller, the decree refusing specific performance is affirmed and the bill dismissed, without prejudice to the right of the plaintiffs to proceed at law. Each party to pay his own costs.