Goggins v. Risley

• Decision Date: 23 April 1900
• Docket Number: 182-1899
• Citation: 13 Pa.Super. 316
• Parties: Ellen C. Goggins v. Daniel L. Risley, Appellant
• Court: Pennsylvania Superior Court

13 Pa.Super. 316

Ellen C. Goggins v. Daniel L. Risley, Appellant

No. 182-1899

Superior Court of Pennsylvania

April 23, 1900

Argued December 14, 1899

Appeal by defendant, from decree of C.P. No. 1, Phila. Co.-1898, No 439, in favor of plaintiff.

Bill in equity for dissolution of agreement of sale of certain real estate and return of purchase money, and for the return of purchase money on other real estate on reconveyance thereof by plaintiff on the ground of fraud. Before Biddle, P. J.

The facts sufficiently appear in the opinion of the court.

The court below entered the following decree:

And now, to wit: September 25, 1899, it is ordered, decreed and adjudged as follows:

1. That the three contracts of sale between Daniel L. Risley, the defendant, and Ellen C. Goggins, the plaintiff named in plaintiff's bill, be and the same are hereby rescinded and annulled.

2. That the said Daniel L. Risley pay forthwith to the plaintiff the sum of $ 365.14, the same being the amount paid by her for purchase money of the lots of ground, with interest thereon from the date of trial.

3. That the said Daniel L. Risley accept the deed of Ellen C Goggins, and that he pay all costs accrued by reason of these proceedings.

Defendant appealed.

Errors assigned among others were in decreeing a rescission of the three contracts of sale, because the plaintiff failed to prove that at the time the said contracts were severally made the defendant made any fraudulent misrepresentations which induced the plaintiff to enter into the said contracts. In decreeing a rescission of said contracts, because the plaintiff's right of action was barred by the statute of limitation, and because the plaintiff has been guilty of laches.

Decree modified.

A. B Repetto, for appellant. -- The proof of fraud in this case depends upon the testimony of the plaintiff alone. Under the authorities it will be necessary in order to rescind a contract that the plaintiff's testimony be corroborated: Cummins v. Hurlbutt, 92 Pa. 165; Martin v. Berens, 67 Pa. 459; Campbell v. Patterson, 95 Pa. 447; Nulton's Appeal, 103 Pa. 286.

The principle is well established that a party who seeks a rescission of the contract must do so within a reasonable time and must inform the other party of his intention to rescind: Leaming v. Wise, 73 Pa. 173; Howard v. Turner, 155 Pa. 349.

In order to prevent the statute of limitations from running, actual concealment would seem necessary. The mere fact of nondiscovery will not be enough: Bispham on Equity, sec. 203.

Charles F. Eggleston, for appellee. -- The findings of the court sitting as a trial judge in equity proceedings are equivalent to the findings of a master subsequently approved by the court, and will not be set aside by the appellate court except for clear error: Stocker v. Hutter, 134 Pa. 19; Brotherton v. Reynolds, 164 Pa. 134.

It has also been held that such findings of fact will not be reversed by the appellate court where they are based upon evidence sufficient to submit to a jury: Warner v. Hare, 154 Pa. 548.

Before Rice, P. J., Beaver, Orlady, W. W. Porter, W. D. Porter and Beeber, JJ.

OPINION

RICE, J.

On October 24, 1892, the defendant entered into a written contract with the plaintiff for the sale to her of a lot described as " lot No. 2 in section 59, as shown on a plan of lots of the Pleasantville Land Company and known as tract or map No. 2," for the sum of $ 250 payable in weekly instalments. The plaintiff made payments at irregular intervals until March 28, 1898, the payments amounting in the aggregate to $ 160.

On October 26, 1892, the defendant deeded to the plaintiff another lot situated on Oakland avenue for the consideration of $ 100. The location of this lot was precisely described in the deed, by courses, distances and adjoiners and was further described as " lot No. 262 as shown on map of Bay View Place, a copy of which is on file in said clerk's office" (of Atlantic county, New Jersey).

On March 6, 1893, he deeded to her another lot for the consideration of $ 100, which was described as lot No. 279 on the same plan.

In December, 1898, the plaintiff filed a bill in equity averring that she was induced to make these purchases by certain false and fraudulent representations of the defendant, to which we shall refer hereafter, and praying that the contract of October 24, 1892, be canceled and declared null and void, that the sales above referred to be rescinded, and that the defendant be directed to repay to her the sums paid by her as aforesaid upon the reconveyance to him of the two lots numbered 262 and 279. The defendant filed an answer and after a trial the court made the decree prayed for. The present appeal is from that decree.

At the very threshold of the case the questions are presented, whether or not the answer is responsive, and, if it is, whether or not the allegations of the bill are established by the quantum and quality of proof required in such cases. In the consideration of these questions it will be necessary to look at each of the three transactions separately.

1. As to the first transaction the only material statements or representations, the falsity of which is distinctly alleged in the bill, are, first, that a new electric railroad was about to be built along one of the streets of the land company's property; second that the lot described in the contract was next to the lot sold her sister in August, which was pointed out by the defendant at that time as being at the corner of two opened streets, whereas, in fact, it was " in a wilderness of Jersey sand, weeds and briars, to which there was no road or other means of ingress or egress." As to the first of these allegations the answer makes an explicit and unequivocal denial, coupled with an admission that the defendant may have stated that certain persons were talking of building such a road. As to the allegation that the lot described in the contract is not the lot pointed out to her, the answer avers that the map of the Pleasantville Land Company, whereon the lands of the defendant were outlined and described was shown to her (the bill alleges that no map of the land was shown her), that she agreed to purchase lot No. 2, section 59, as shown on the map (this is the description in the contract), and that all the properties purchased by the plaintiffs are the ones shown to her when she was shown the ground.

So far as the first transaction is concerned, we fail to see what essential of a responsive answer is lacking. To so much of the bill as it is necessary and material for the defendant to answer, he must speak directly and without evasion; and he must not merely answer the several charges literally, but he must confess or traverse the substance of each charge Mitford's Eq. Pl. by Jeremy, 309, 110; Story's Eq. Pl. (10th ed.) sec. 852. We are of opinion that the answer fully comes up to this standard. It directly traverses the substance of each material allegation of false...