Negley v. Lindsay

• Decision Date: 16 January 1871
• Citation: 67 Pa. 217
• Parties: Negley <I>et al. versus</I> Lindsay.
• Court: Pennsylvania Supreme Court

67 Pa. 217

Negley et al. versus Lindsay.

Supreme Court of Pennsylvania.

November 22 and 23, 1870.

January 16, 1871.

November 22d and 23d 1870.

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

Error to the Court of Common Pleas of Allegheny county: No. 227, to October and November Term 1869.

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A. M. Brown and T. M. Marshall, for plaintiff, in error.—Specific performance will not be enforced, unless its terms are clear and capable of ascertainment from the instrument itself: Soles v. Hickman, 8 Harris 180; Hammer v. McEldowney, 10 Wright 334; Martin v. Duffey, 4 Phila. Rep. 75. Such a description as that in the deed offered, would be bad after verdict: Hagey v. Detweiler, 11 Casey 409; O'Keson v. Silverthorn, 7 W. & S. 246; Smith v. Webster, 2 Watts 478; Adams v. Williams, 2 W. & S. 227; Espy v. Anderson, 2 Harris 308; Martin v. Hammon, 8 Barr 270; Rawle on Covenants for Title 430-431 and Note 2; Dalzell v. Crawford, 1 Parsons' Reports 45. The contract was fraudulent and therefore void and could not be confirmed by subsequent acts or declarations: Duncan v. McCullough, 4 S. & R. 482.

M. W. Acheson, for defendant in error.—The representations alleged were no defence: Watts v. Cummins, 9 P. F. Smith 84. The description was sufficient: Richardson v. Stewart, 2 S. & R. 84; Banks v. Ammon, 3 Casey 172; Simpson v. Breckenridge, 8 Id. 287; Siegel v. Robinson, 6 P. F. Smith 19. The vendor was not bound to show title: 2 Hilliard on Vendors 17; Snevily v. Egle, 1 W. & S. 484; Hite v. Kier, 2 Wright 72. As to rescission and waiver: 2 Parsons on Contracts 276-279; Kingsley v. Wallis, 2 Shepley 57; 1 Sugden on Vendors 277; Pearsoll v. Chapin, 8 Wright 9.

The opinion of the court was delivered, January 16th 1871, by SHARSWOOD, J.

The 1st assignment of error is to the admission in evidence of the deed of Lindsay and wife to the defendant, dated March 3d 1866, and the 7th and 8th errors to its effect when admitted. The objection was to the insufficiency of the description of the premises conveyed. "All that certain tract or parcel of land situate in Wood county, West Virginia, located on Little Stillwell creek, between three and four miles from the Baltimore and Ohio Railroad, on the National turnpike." The abutters on the west and north are then given, but those on the east and south are left in blank; and it then adds, "and contains 180 acres, more or less, and now occupied by Jacob Buzzard as tenant." Primâ facie such a description was certain enough, and there was no error, therefore, in the admission of the deed. It followed the description as contained in the article. It might have been competent to the defendant to have shown by parol evidence that it was insufficient to identify the tract, but that would be a question subsequent to its admission: Richardson v. Stewart, 2 S. & R. 84. No such evidence was given. The 2d assignment is in overruling the defendant's motion for judgment of nonsuit. But it is perfectly well settled, that a refusal to direct a nonsuit to be entered is not the subject of review on a writ of error: Girard v. Gettig, 2 Binn. 234; Bavington v. Pittsburg and Steubenville Railroad Co., 10 Casey 358; The United States Telegraph Co. v. Wenger, 5 P. F. Smith 262.

The 3d error assigned is to the admission of a part of the evidence of Jacob Buzzard, in which he was allowed to testify that he had received an offer for the purchase of the land in controversy, at the price of $14,000, from a responsible party, who purchased other land in the vicinity. This evidence was certainly inadmissible. If it showed the opinion of the person who made the offer, it was mere hearsay.

If the value of the land or other thing could be proved in this way, nothing would be easier than to manufacture abundance of such testimony.

The 4th, 5th, 6th, 10th, 11th and 12th assignments may be considered together. They are to answers to points, and to the charge of the learned judge below, all involving substantially the same question. One defence set up was that the plaintiff had been guilty of fraudulent misrepresentations as to the character and value of the land which was the subject-matter of the contract of sale. There was evidence that Gen. Negley, one of the defendants, after the contract had been made and signed, as agent, and on behalf of the others, had visited and examined the property. The learned judge held, and so instructed the jury, that if they found this to be so, and that Gen. Negley became acquainted, or had the opportunity of becoming acquainted with the true state of the facts, the defendants were bound to give notice to the plaintiff, within a reasonable time, of their rescission of the contract, and if they waited until after they had attempted and failed to get up an oil company to take the land, they could not avail themselves of this defence. It was decided, indeed, in Duncan v. McCullough, 4 S. & R. 487, that when a contract is in itself fraudulent, it is void, and cannot be confirmed by any subsequent declarations or acts by which its fairness is acknowledged. "Where there has been actual and positive fraud, or the adverse party has acted malâ fide, there can be no such thing as a confirmation; what was once a fraud will always be so. The reason of the distinction is, that a contract infected with that kind of fraud, which must be proved and not presumed from the circumstances of the parties, is not merely voidable but void and confirmation without a new consideration would be nudum pactum." Per Gibson, J. This decision has been recognised and affirmed in Chamberlain v. McClurg, 8 W. & S. 31; Goepp's Appeal, 3 Harris 428; Miller's Appeal, 6 Casey 478. Yet there are some cases not easily reconciled with this broad doctrine, as in Juniata Bank v. Brown, 5 S. & R. 234, where Chief Justice Tilghman said: "To make a confirmation of a contract, in which a man has been defrauded, very strong facts must be shown; and, particularly, it must appear that those acts were done with full knowledge of the truth." In Staines v. Shore, 4 Harris 200, which was the case of fraud in the sale of a horse by auction by the employment of a puffer, Chief Justice Gibson said: "Had the horse lived, in this case, it would have been necessary to return or tender him to the vendor as soon as the fraud was discovered;" implying that if he was kept on hand and used by the vendee — much more, if he had tried to sell him at a greater price than he had given for him, and only on finding that he could not, offered to return him — the defence of fraud would not avail him. Judge Baldwin, who may be regarded as belonging to our own judiciary, in Blydenburg v. Welsh, Baldw. 338, held, that if, after a party has acquired a knowledge of facts tending to affect a contract with fraud, he offers to perform it, on a condition which he has no right to exact, he thereby waives the fraud and cannot set it up in an action on the contract. "This," said he, "is a waiver of the objection to the contract on the ground of fraud, if he was informed of all matters which bore upon that question; if he remained ignorant of them it is no waiver." The authorities cited by Mr. Justice Gibson in Duncan v. McCullough, of Ardglass v. Munbaugh, 1 Vern. 237, and Wiseman v. Beake, 2 Vern. 121, are those of young heirs dealing with their expectancies, "catching bargains," where the contract has been held void on the ground of public policy, and as is remarked by Mr. Justice Story (1 Eq. Jur. § 337), "the aim of the rule is chiefly directed to prevent deceit and imposition upon parents and other creditors." Of these cases, Lord Hardwicke remarks, the same fraud attended the confirmation as the original bargain. Baugh v. Price, 1 Wilson 320, was a case of the same kind, and it is there expressly put on the ground that the contract was void as against public policy. Brooks v. Gally, 2 Atk. 34, which he also cites, can hardly be said to to support him; for it was a claim for wines and liquors furnished to a school-boy, and a note given by him for the...