216 Pa. 622 | Pa. | 1907
Opinion by
The statement of claim in this case avers two causes of action. First, that the mining claims sold by defendant to plaintiff were never legally located, and, therefore, were not owned by defendant, and consequently there was a total failure of consideration. Secondly, the plaintiff had been induced to enter into the contract by the false representations of one McKinley, who was alleged to be defendant’s agent, and the plaintiff was, therefore, entitled to rescind the contract, and reclaim the purchase money paid.
It is urged by appellant’s counsel, that there was a misjoinder of counts. We do not think the point is well taken. Both counts here are in assumpsit. Plaintiff waives the tort and sues to recover, not damages for the deceit, but the amount of the consideration paid by him under the contract which he rescinded.
In Pearsoll v. Chapin, 44 Pa. 9, a leading case, Chief Justice Lowrie said: “ The special count claims for a rescission provided for by a contract, and the other for a recission because of the fraud; and this is something like a suit on a note, with a cautionary count for the goods sold and delivered, being the consideration of the note, so that failing on the note the party may claim for the goods given for it. We cannot say that this is wrong. One count for damages for the fraud and one for a recission would be repugnant: Cooke v. Munstone, 4 B. & P. 351. Nor was it erroneous íd the court to say that the plaintiff may waive the action of tort for the deceit, and sue in assumpsit for the money which he paid on the contract, or which
In Humbird v. Davis, 210 Pa. 311, our Brother Mestrezat said: “ This was assumpsit for money had and received and we think the action was properly brought. Under the finding of the jury the defendants unlawfully and fraudulently received the money of the plaintiffs and hence have no right to retain it. The plaintiffs, waiving the tort, brought this action to recover the money of which they had been fraudulently deprived. The action lies on the implied promise to repay the sum unlawfully withheld.” Citing 2 Greenleaf’s Evidence, secs. 102, 120.
But in any event, the objection comes too late. An objection to the inconsistent of two counts in a narr. must be taken advantage of by demurrer; it will not be inquired into on error : Martin v. Stille, 1 Whart. 331; Schmidt v. Owens, 10 W. N. C. 5.
In Burkholder v. Beetem, 65 Pa. 496, Justice Sharswood says : “ There were several counts in the declaration, some in form ex contractu, and one in tort. At the opening of the cause the court required the plaintiff to elect on which counts he would proceed. The plaintiff then elected to proceed on the counts in assumpsit, and excepted to the ruling of the court. This is certainly a novel proceeding. I have looked in vain. through the books for any precedent or authority to justify it. The mode of taking advantage of misjoinder of counts is by demurrer in the first instance. ... If the defendant chooses to plead in bar, and go to trial on such a declaration, there is no authority in the judge to strike out any count, or to put the plaintiff to his election between a count in assumpsit and another in tort.” The first and fourth assignments of error cannot be sustained.
The question whether there had been a discovery of a vein or lode within the limits of the claim, before its location, as required by the act of congress, was one of fact for the jury and not of law for the court. In Blue Bird Mining Co. v. Largey (U. S. C. C., D. Mont.), 49 Fed. Repr. 289, it is said : “ The first question for discussion is as to the dispute as to whether the Blue Bird vein, lode or ledge is such a one as is re
In Book v. Mining Co. (U. S. C. C., D. Nev.), 58 Fed. Kepr. 106, it is said : “ It is always, in every case, a question of fact to be determined by a court or jury, whether a vein or lode has been discovered or exists within the limits of the particular claim or location in controversy.”
The allegation that there had been no discovery of a vein, or of rock in place, bearing .gold, upon the mining claim sold by defendant to plaintiff, was amply supported by evidence.
There was also sufficient evidence to go to the jury of the allegation, also raising a question of fact, that the statute of Idaho, requiring the sinking of a shaft of specified dimensions upon the lode within sixty days of the location, had not been complied with.
There was much conflict of evidence as to whether McKinley was the agent of Haskell, and this was properly submitted to the jury. The trial judge was of the opinion that the written agreement entered into between Whitney and McKinley was not in itself conclusive as to the question of agency, and in this we think, under the circumstances of the case, he was right. The agreement was offered in evidence by defendant as part of the cross-examination of plaintiff, and no attempt was made by defendant to stand upon it as a writing, which could not be varied or contradicted by parol evidence. The court was not asked to construe the contract as matter of law. Witnesses were interrogated by defendant as to their understanding of its form and effect, and as to what they meant by it, when they executed it. The gate having been opened by the defendant, he has no right to object because the plaintiff also submitted to the jury his understanding of the agreement. The court left it to the jury to determine whether or not the compensation referred to in the agreement was for services already rendered in the purchase of the property, or was intended to cover future services in connection therewith.
It is quite conceivable that, as is suggested, the defendant was to receive the amount named as the purchase price for the mining claims, net, so that any commission received by McKinley for making the sale must have been paid by the.purchasers. If so, such payment would not be inconsistent with
In the opinion refusing a new trial, the court below says: “ There ivas ample testimony from which the jury was warranted in finding (1) that in the sale from Haskell to Whitney, McKinley acted not for Whitney but solely for Haskell; and (2) that the compensation to McKinley (to be paid by Whitney in stock of the corporation to be organized for purchasing, developing, and operating the properties, as stated in exhibit No. 8) was either (a) simply payment by Whitney for services rendered by McKinley for Haskell as the latter’s agent in the sale to Whitney — for Haskell’s price was to net him the full $20,000 named in the contract of sale; or (b) for future services to be rendered in the business operations of said corporation.”
We can see no good reason why the court should have withdrawn the case from the jury because of this agreement, and no authorities have been found which, in principle, would require him to do so.
The assignments of error are overruled, and the judgment is affirmed.
