Laubach v. Laubach

• Decision Date: 27 March 1873
• Citation: 73 Pa. 387
• Parties: Laubach <I>versus</I> Laubach.
• Court: Pennsylvania Supreme Court

Page 387

73 Pa. 387

Laubach versus Laubach.

Supreme Court of Pennsylvania.

March 20, 1873.

March 27, 1873.

March 20th 1873.

Before READ, C. J., AGNEW, SHARSWOOD, and MERCUR, JJ. WILLIAMS, J., at Nisi Prius

Error to the Court of Common Pleas of Lehigh county: No. 152, to July Term 1872.

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H. Green and C. M. Runk, for plaintiff in error.—The measure of damages was the difference between the contract price and the value of the chattels at the time of the breach: Story on Sales, sect. 348; Phillpot v. Evans, 5 M. & W. 475; Laird v. Pine, 7 Id. 478; Boorman v. Nash, 9 Barn. & Cress. 145; Andrews v. Hoover, 8 Watts 239; McCombs v. McKennan, 2 W. & S. 216; Thompson v. Algeo, 12 Metc. 428; Bowser v. Cessna, 12 P. F. Smith 148. If a witness be asked on cross-examination as to a collateral fact, his answer is conclusive against the party asking him: 1 Green. Ev., sect. 449; Elliott v. Boyles, 7 Casey 65; Hollingham v. Head, 4 Com. B. N. S. 338.

E. Harvey and J. D. Stiles (with whom was C. D. Erdman), for defendant in error.—This was not a contract to sell shares of stock, but to pay back the money and interest; after refusal the plaintiff could have sold it or held it subject to defendant's order, and recovered the whole sum: 3 Parsons on Contracts 209; Bement v. Smith, 15 Wend. 493; Crookshank v. Burrell, 18 Johns. 58; Towers v. Osborne, 1 Strange 506; Thompson v. Algeo, 12 Metc. 443; Ballentibe v. Robinson, 10 Wright 180.

The opinion of the court was delivered, March 27th 1873, by SHARSWOOD, J.

The first assignment of error is intended to raise the question, whether the instruction of the learned judge below to the jury, as to the measure of damages, was correct. There was no dispute as to the amount which the plaintiff had paid for the stock, nor that he had made a regular and formal tender of it back to the defendant, and demanded the return of the money, or a note, in conformity with the agreement. The plaintiff in error supposes that the same rule is applicable in this case as in the ordinary case of the refusal of a vendee, before any title to the property has passed to him, to accept goods which he had previously agreed to buy. The authorities which have been cited abundantly show that there the measure of damages is the difference between the contract and the market price at the time of the refusal or breach. But the mistake is in considering that this was a contract to purchase or repurchase. If the jury believed the testimony of the plaintiff, and that was left to them, and upon his credibility the whole controversy hinged, then it was an agreement by which, as one of the terms of the sale, the plaintiff was to be at liberty to rescind the contract, and the defendant undertook in that event to pay back the price or give his note for the amount. It is like the very common case of the purchase of a horse, where the buyer pays the price, but stipulates that after a reasonable trial, if he should not be satisfied with the animal he may return him and receive back the price paid. No one has ever supposed that this was to be construed as a contract to repurchase, or that upon the exercise by the vendee of the option reserved, the title does not revest in the original vendor, and the right to the price in the vendee. This is the legal effect of the rescission of a contract, whether the rescission be by reason of an inherent vice, such as fraud, or by virtue of the terms of the contract itself: Smethurst v. Woolston, 5 W. & S. 106.

The nine following assignments all relate to one and the same question. The plaintiff had testified that the defendant stated to him as an inducement to the purchase, that he had reserved twenty thousand shares of the stock of the company in dispute, for the Laubach family, from which the inference was, that he was the...