Huthmacher v. Harris's Administrators

• Decision Date: 25 March 1861
• Citation: 38 Pa. 491
• Parties: Huthmacher <I>versus</I> Harris's Administrators.
• Court: Pennsylvania Supreme Court

38 Pa. 491

Huthmacher versus Harris's Administrators.

Supreme Court of Pennsylvania.

March 25, 1861.

ERROR to the Common Pleas of Luzerne county.

COPYRIGHT MATERIAL OMITTED

Hendrick B. Wright, for plaintiff in error.—The relations

between the plaintiff and defendants were that of vendor and vendee. If there were a mistake on the part of the plaintiff in the article sold, how far does the law allow him a remedy? This seems to be the inquiry.

Fraud or misrepresentation, or deceit of any kind, by which either party is imposed upon, vitiates all contracts. Story on Contracts, chap. xv., sec. 423. Neither of these causes existed here.

It was mistake. A mistake, or ignorance of a material fact, under some circumstances, is voidable.

In a policy of insurance the underwriter received back a portion of the premium where there was an error in the ownership of a part of the goods: Pearson v. Lord, 1 Mass. 81. So the endorser of a note, who pays in ignorance of a want of protest, is relieved: Garland v. Salem Bank, 9 Mass. R. 40.

The same rule does not apply to vendor and vendee in courts of equity, where a specific decree is asked. With the vendor it is obligatory, but in the discretion of the court with the vendee: 2 Comyns' Dig. 494. Refers to 2 Atk. 180.

"An actual misrepresentation, coupled with an intention to deceive, even on a material point, will not invalidate a contract unless the false statement were the means which produced it." Phipps v. Buckman, 1 Casey 401: McFarland v. Newman, 9 Watts 57.

Where information is open to both parties, neither can complain: Kintzing v. McElrath, 5 Barr 469; Fisher v. Rowall, 5 W. & S. 484; Belting's Appeal, 5 Harris 216; 1 Story's Eq., §§ 190, 191, 197.

If the defendant had knowledge of the contents of the machine, he was not bound to disclose it: 1 Story Eq., § 147.

A party in case of mutual mistake should be put in as good position after as before sale: Conner v. Henderson, 15 Mass. 319.

But it may be said the defendant did not buy what he supposed he bought, nor the vendor suppose he was selling what he actually did. There is an English or French decision, which I am unable to obtain, of the sale of a painting by one of the masters, covered over with a common and ordinary picture, to prevent its being taken, in some of the Italian campaigns. In this condition it was sold for a small sum. The owner afterwards finding out its value, failed to recover it back under the plea of mistake. The bedstead of Richard III., many years after the battle of Bosworth Field, was sold at that place, the owner finding the frame and posts filled with sovereigns. Who owned them? A tropical bird was sold recently in New Orleans, the owner finding in its craw some valuable stones. Were these jewels sold with the bird?

The court below assumes that the administrator, acting in a fiduciary capacity, would be relieved as matter of course, and that if there cannot be a recovery back, he would be guilty of devastavit. Devastavit arises from negligence of the trust (Toll. Ex. 424) by giving away, embezzling, consuming the decedent's estate, or by loss which by ordinary prudence he could have prevented: Gordon's Decedents 264: refers to 2 Vernon 299. Negligence generally, which cannot be applicable to the present case, because no degree of prudence could have anticipated that any of the estate was concealed where it proved to be.

Does an administrator occupy a different position from an owner, where a material fact in a contract was unknown at the time it was made?

If neither had the means of knowledge, it is difficult to say on what principle there should be drawn a line of distinction.

E. L. Dana, for defendants in error.—The defendants in error contend, that Huthmacher took, by his purchase, simply the block of wood, or drill machine, that being the definite article offered for sale, bid off, paid for by, and delivered to him. With the drill machine, he became entitled to the essential materials of which it was composed, its requisite appurtenances, and its mechanical adaptations for all lawful uses which ingenuity might devise, or skill and labour effect.

That the notes, contracts, moneys and jewelry secreted therein formed no part of, were not appurtenant thereto, nor were they, as is conceded by the argument of the plaintiff in error (if the contract of sale be an intelligent act of concurrent assenting minds), the definite subject offered for sale on the one side, or purchased by the other, and that they did not therefore pass by the sale.

That title to the notes, &c., passed to Huthmacher, can be sustained only on the paradox that the administrator sold that which he did not assent to the sale of, which he had not offered for sale, part of which he could not by means of a public sale give title to, and for which he neither received nor contracted to receive a price; and that the plaintiff in error purchased that which he did not bid for, nor pay for; or more briefly, that the administrator contracted to sell what he did not contract to sell, and the purchaser to buy what he did not contract to buy.

The contract of sale is consensual, requiring assent, contains reciprocal engagements, and requires the interchange of supposed equivalents. It can be effected only when there are competent parties, a mutual assent to certain terms, a definite subject to be sold, and a certain price: Story on Sales, § 8. In order to transfer property in goods or chattels by bill of sale or other instrument of transfer, the chattel intended to be conveyed must be in existence, and be ascertained and identified at the time of the execution of the grant or transfer: Addison on Contracts 220. The precise thing sold must be ascertained and identified, except when the sale is of undivided quantities, expressly sold as such: Id. 221.

There was here no delivery of the articles, in either of the three modes recognised in law, (Id. 240,) actual, symbolic or constructive: Hilliard on Sales 3.

Suppose that before the block was "set out beside the fence," and the fifteen cents paid, the administrator had discovered the concealed treasures, taken them out, and Huthmacher tendering the fifteen cents had brought his action "to recover the market value of the goods at the time and place, when and where they ought to have been delivered," Story on Sales, § 448, or "the difference between the value of the article delivered and the commodity sold:" 3 Rawle 44. The removal of the block by Huthmacher, and payment of the fifteen cents, cannot change the rights of the parties, or raise any implication, for in the language of the counsel for plaintiff in error, "negligence" cannot be applicable to the present case, because no degree of prudence could have anticipated that any of the estate was concealed where it proved to be.

The present bears some analogy to the case of treasure trove, "which is when money or coin, gold, silver, plate or bullion, is found hidden in the earth, or other private place, the owner thereof being unknown, in which case the treasure belongs to the King; but if he that hid it be afterwards found out, the owner and not the King is entitled to it:" 1 Chit. Black. (m.) page 295. So far from acquiring any rights therein, the penalty, formerly of death, afterwards of imprisonment, was the punishment of him who concealed from the King such finding.

Passing to the question of mistake. The mistake in this case arose from ignorance of a fact not of law. And "in respect to mistakes of fact, the rule is, that no contract of sale is reciprocally obligatory upon the parties thereto, if it be founded upon an injurious mistake of a material fact forming the basis of the contract; although such mistake be occasioned by no fraud or imposition. The only consideration is, whether the mistake is in respect to a fact, which is material, and which would have modified or affected the mind of...