Leaming v. Wise

• Decision Date: 17 May 1873
• Citation: 73 Pa. 173
• Parties: Leaming <I>et al. versus</I> Wise <I>et al.</I>
• Court: Pennsylvania Supreme Court

73 Pa. 173

Leaming et al. versus Wise et al.

Supreme Court of Pennsylvania.

February 18, 1873.

May 17, 1873.

February 18th 1873.

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

This was an action of assumpsit brought October 30th 1869, by I. Fisher Leaming and another, trading as Waln, Leaming & Co., against Charles Wise and Ellwood T. Pusey, to recover back money paid by plaintiffs to defendants for oil-stocks, alleged to have been sold under false representations.

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S. S. Hollingsworth (with whom was G. W. Biddle), for plaintiffs in error.—The seller having by his fraud put the buyer in possession of the stock cannot complain of the delay of tender of the goods before suing for the purchase-money: Blake v. Mowatt, 21 Beavan 603. Where the rights of third parties have not intervened, the right to rescind can be lost only by confirmation: Kerr on Frauds 235 et seq., and notes; Negley v. Lindsay, 17 P. F. Smith 217. The delay might be explained by other facts; and the question was therefore for the jury: Rowe v. Osborne, 1 Starkie 112; Lawrence v. Knowles, 5 Bingh. N. C. 399; Charnley v. Dulles, 8 W. & S. 353.

R. P. White, for defendants in error.—The question of reasonable time was one of law: Atwood v. Clark, 2 Greenleaf 249. The rescission must be in a reasonable time: Downs v. Smith, 32 Vermont 6; such time is the earliest moment after discovering the fraud: Weed v. Page, 7 Wisc. 513; Kingsley v. Wallis, 14 Maine 57; Mason v. Bovet, 1 Denio 74; Howe v. Huntingdon, 15 Maine 350; Hill v. Hobart, 16 Id. 168; Campbell v. Fleming, 1 A. & E. 40; Ayers v. Mitchell, 3 Shaw & McLean 683; Hoolbrook v. Bart, 22 Pick. 546; Clark v. Ascham, 1 Ellis, B. & Ellis 148.

The opinion of the court was delivered, May 17th 1873, by WILLIAMS, J.

The only question worthy of consideration in this case is presented by the 14th assignment. The action was brought to recover the price paid for certain oil-stocks which the plaintiffs alleged that they had been induced to purchase upon the fraudulent representations of the defendants as to the cost of the land; and a recovery was sought to be had on the footing of the plaintiffs' rescission of the contract and a tender of the stocks to the defendants before bringing the action. The evidence shows that the plaintiffs bought the stocks in April 1864; that they were informed by the defendants, in October or November 1865, of the price paid for the lands; and that, on the 2d of March 1866, they tendered the stocks to the defendants and demanded back the money they had paid for them. Between the discovery of the alleged fraud and the tender of the stocks the assets of the company had been exhausted in boring unsuccessfully for oil, and the stocks had consequently depreciated in price. The court charged the jury that if they found that the plaintiffs were informed of the price of the lands by Mr. Wise in October, or early in November 1865; that the plaintiffs did not offer to return to the defendants the stocks in question for one or more months after such information was given; (the date is given, the evidence is March 2d 1866;) that the price of the stocks had fallen between the time of the receipt of the information and the time of the tender, or that any other unfavorable circumstances appearing from the evidence occurred in the interval, so that the defendants would be in a worse condition by taking back the stocks at the time of the tender, than they would have been if the stocks had been previously tendered at the time the...