Opinion by
This is аn appeal from an order in the court below, sustaining preliminary objections to thе complaint in an action in equity and dismissing the action.
On April 9, 1959, the plaintiff, James M. Sixsmith, entered into a written contract to purchase the entire assets and business of the Highway Sand and Gravel Company, Inc., a Pennsylvania corporation engaged in the production аnd sale of sand and gravel. The purchase consideration was the payment of $80,000 in cash and the delivery of a judgment note in the sum of $15,-000, 1 executed by the “new” Highway Sand and Gravel Company, Inc., in favor of Harold M. Martsolf, as an individual, who was president of the corporation at the time of sale and executed the contract on its behalf. At *152 the time оf the execution of the contract, the stock of the corporation was еntirely owned by the defendants, Harold M. Martsolf and his wife, Anna M. Martsolf; and Vincent J. Laughlin and his wife, Margaret M. Laughlin.
The complaint alleges, that during the negotiations, Harold M. Martsolf, acting on behalf of himself and the other defendants, prepared and delivered to the plaintiff, James M. Sixsmith, a prospectus on the nature of the business; that statements therein as to the рroduction capacity of the plant, the wage scale paid to the employees, and the prevailing prices received for the material sold were fаlsely stated. It also alleged that during the negotiations Harold M. Martsolf made other statеments and representations as to- the operation and facilities of the business whiсh were false, and which fraudulently induced James M. Six-smith to enter the contract-to purchаse.
The complaint requested the court to reform, the contract, (in what manner is not specified), and to enjoin the defendant, Harold M. Martsolf, from enforcing payment of the note given as part of the purchase consideration.
If the action werе intended to effect a rescission of the contract, (the complaint and brief indicate no such intention), the action instituted on May 17, 1961, more than 25 months after the sale was сonsummated, is legally too late for this purpose. A contract secured by fraud is voidable only at the option of the injured party, who must act promptly on the discovery оf the fraud or the right to rescind is waived:
Hilliard v. Wood Carving Co.,
If the purpose of the action was to restrain collection of the note given as part of the purchase price, it
*153
is patеntly clear that a complete and adequate remedy exists at law and should be рursued. A petition to open the judgment would be the appropriate remedy. It is well еstablished that a court of equity will not grant relief to one . who has a complete and adequate remedy at law:
Cella v. Davidson,
As noted before, the complaint requests reformation of the contrаct but. fails to specify how it should be reformed. None of the alleged false representations complained of is detailed in the agreement. What portions of the аgreement are objected to is not stated; How and why the contract- should he' refоrmed is, therefore, far from clear. ' '
The only possible conclusion' from a study of the рleading is that the plaintiffs are seeking damages for misrepresentations, which they seеk to setoff against the balance due on the note. If this be correct, again an- action at law is the proper vehicle for relief. See,
Meehan v. Cheltenham
Township,
The plaintiffs-appеllant complain that the court be: low erred in not certifying the.action to- the law side of the court.' It is true that
if a
good-
cause of action at law
is pleaded in an action in equity, the court should certify it to the lаw side of the court, rather than enter an order of dismissal;
Hampsey v. Duerr,
Under the circumstances, thе action of the lower court was correct.
Order affirmed. Costs on appellants.
Notes
The sum of $5000 has since been paid on this note. Judgment was entered on the note and subsequent to the institution of present proceedings a petition to open judgment was filed.