146 Pa. 163 | Pennsylvania Court of Common Pleas, Butler County | 1892
Opinion,
A judgment of compulsory nonsuit having been entered at the close of the plaintiff’s testimony, the truth of all the facts proved, and all legitimate inferences therefrom, must be assumed in faAmr of the plaintiff. The fact that Wolcott was the agent of the defendants in procuring the certificates from the plaintiff is one of these, and the liability of the defendants for the acts and declarations of their agent in the course of the transaction is a necessary legal inference. Another leading and very serious fact, entirely without question, is, that the defendants, by means of, and in consequence of, the acts and declarations of their authorized agent, obtained from the plaintiff certificates for three thousand barrels of oil of the actual cash value of over ten thousand dollars, for which they gave him nothing having any value, and, as he alleges and testifies, nothing which he ever agreed to accept. The certificates which the defendants offered to the plaintiff were absolutely and utterly worthless, and it is an inference which a jury would be perfectly at liberty
But there was another fact equally as well established with the rest, which gives a peculiar and especial character to the transaction well worthy of notice. It is this: The plaintiff was induced to part with Ms certificates to the defendants, in advance of any delivery by them, and without anything to show for them except the verbal promise of the defendants by their agent to deliver the certificates of the Transportation company, with the name and responsibility of a party perfectly sound’ and good. The thing was done by the defendants’ agent, and therefore it was their act; but even the name of the principal was not disclosed at that stage of the transaction. It was, of
It is perhaps unnecessary to discuss the facts of the case any further. We are clearly of opinion that it was grave error to withdraw them from the consideration and decision of the jury. They raised in a very forcible and emphatic manner a question of fraud in fact, which the court had no right to decide but was bound to commit to the jury. It was not by any means a case in which the proof was only a scintilla. On the contrary, it is difficult to understand, upon the testimony as it now stands, and upon the prominent leading facts of the case, how it is possible to explain the transaction on behalf of the defendants, consistently with any regard for business integrity or common honesty. It cannot be believed that, if the defendants’ agent had offered to the plaintiff, at the time he proposed the exchange, the same certificates and in the same condition in which they were when he really did offer them, the plaintiff would even have considered the subject of an exchange, much less agreed to it. We are not informed of the reasons why the
With reference to the proposed amendment, we think that, in view of the fact of the very long delay in making the application, and of the fact that the defendants’ mouths are closed by the death of the plaintiff, and that the allegation of fraud is more difficult to make out than the mere liability upon a' failure of consideration, it would not be equitable to permit the plaintiff to gain an advantage by the pleadings which he did not have before the application was made, and we therefore decline to sustain the first assignment of error.
Judgment reversed, and new venire awarded.