Clark v. Everhart

• Decision Date: 03 January 1870
• Citation: 63 Pa. 347
• Parties: Clark <I>et al. versus</I> Everhart <I>et al.</I>
• Court: Pennsylvania Supreme Court

63 Pa. 347

Clark et al. versus Everhart et al.

Supreme Court of Pennsylvania.

November 17, 1869.

January 3, 1870.

November 17th 1869.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Mercer county: No. 74, to October and November Term 1868.

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S. W. Dana (with whom were Foster & McDermitt), cited McKean v. Wagenblast, 2 Grant 465; Fisher v. Worrall, 5 W. & S. 478; Spaulding v. Heges, 2 Barr 243; Miles v. Stevens, 3 Id. 21; Pennock v. Tilford, 5 Harris 456.

W. Stewart (with whom were S. Griffith and J. H. Robinson), cited Stubbs v. King, 14 S. & R. 206.

The opinion of the court was delivered, January 3d 1870, by THOMPSON, C. J.

Assuming, for argument sake, that the letter which the court withdrew, after its admission in evidence, contained the assertion of a fact in regard to the mill being in excellent order, and not an opinion merely, it would be but a single step in raising the defence proposed, to wit: that the defendants purchased on the faith of its representations, and were deceived. This the latter asserted the letter would not show, for peradventure it was not read at all by Pearson, and may not have been discussed by either at the time of the purchase; and, peradventure they may have taken the opinions of others on the subject or examined for themselves. It must be borne in mind, that the learned judge only withdrew it after the counsel for the defendants below were asked, and answered that they had no testimony whatever to give to apply the letter to the result of the purchase, beyond the fact, that it had been written to Clark. It would therefore have been only a guess or surmise, that it had been the inducing cause of the purchase, and liable to be erroneous in the proportion of one possibility to a dozen of reasons why it was not so. This is not enough, on any settled principle. If false and fraudulent representations be alleged as the groundwork for avoiding a bargain, it must be shown that like poison it entered into, and mixing with, the vital essence of it, tainted and destroyed it. That must be proved by a just inference from what took place at or about the time of contracting, and is not to be supplied by surmises or things so equivocal in themselves as to be proof or not as the fancy might dictate. It might be by some imagined that these purchasers, although the letter was written with no idea that they intended to negotiate for a purchase themselves, they applied its assurances to themselves, and on its faith looked no farther but contracted; by others it might be readily believed that it was a representation only to induce people to look at the property and buy if they were suited; that it could hardly...