Smith v. Bellows
| Decision Date | 01 March 1875 |
| Parties | Smith <I>versus</I> Bellows. |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR, GORDON, PAXSON and WOODWARD, JJ.
Error to the District Court of Philadelphia: Of July Term 1873, No. 1.
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W. S. Price, for plaintiff in error.—The Act of May 10th 1871, sect. 1, Pamph. L. 265, 1 Bright. Purd. 70, pl. 6, authorizing change in the form of actions should not be extended to cases after the Statute of Limitation has intervened: Shock v. McChesney, 4 Yeates 507; Bank v. Israel, 6 S. & R. 295; Wood v. Anderson, 1 Casey 407; Smith v. Smith, 9 Wright 403; Trego v. Lewis, 8 P. F. Smith 463; Stout v. Stout, 8 Wright 457.
The act complained of was a wrong and injury to the company, and it must seek the remedy for the benefit of all the stockholders. Individual stockholders are not entitled to cut up and part and divide such a cause of action among themselves, and each maintain a suit upon his supposed share of it: McAleer v. McMurray, 8 P. F. Smith 126; Caldwell v. Boyd, 7 Id. 321; McElhenny's Appeal, 11 Id. 188; Simons v. Vulcan Oil Co., Id. 202; Densmore Oil Co. v. Densmore, 14 Id. 50.
The plaintiff's delay in bringing suit should prevent his recovery: Leaming v. Wise, 23 P. F. Smith 173; Pearsoll v. Chapin, 8 Wright 9; Negley v. Lindsay, 17 P. F. Smith 217. What is reasonable time or undue delay, when the facts are not disputed, is a question of law to be decided by the court.
If a subscription is induced by the fraudulent representations of an officer or agent of a company, the subscription may be avoided or rescinded, and the money recovered back from the company: Crossman v. Penrose Ferry Bridge Co., 2 Casey 69; Custar v. Titusville G. & W. Co., 13 P. F. Smith 381.
R. P. White (with whom was H. R. Edmunds) for defendant.— The only cause of action was that defendant had by fraud got possession of plaintiff's money, and no matter how widely his form of complaint may have been varied, its substance and object was the same. The difference was of form only, and the case was therefore within the statute which is to receive a liberal construction: Knapp v. Hartung, 23 P. F. Smith 290. If the plaintiff adheres to his original cause of action, he may add a count substantially different from the declaration: Cabarga v. Seeger, 5 Harris 514; Schoneman v. Fegley, 7 Barr 433. Plaintiff sues, not for a fraud upon the company, but for a fraud upon himself, and such suit can be maintained by individual stockholders: Kimmel v. Stoner, 6 Harris 155; Kimmel v. Gosling, 2 Grant 125. The plaintiff could not return his stock, for he never got it, and also because it was worthless: Beetem's Adm'r v. Burkholder, 19 P. F. Smith 249; Heath v. Page, 12 Wright 131. Besides this verdict is not upon a rescission of the contract, but for damages sustained by reason of the deceit.
Upon a question of fraud, evidence must be allowed a wide range, and testimony having any bearing, however remote, is admissible: Woods v. Gummert, 17 P. F. Smith 136; Angier v. Angier, 13 Id. 450; Railroad Co. v. Hoge, 10 Casey 214; Kauffman v. Swar, 5 Barr 230. Fraud is not to be considered as a single fact, but a conclusion to be drawn from all the circumstances of the case: Brogden v. Walker, 2 H. & J. 285.
A careful examination of this record discloses no error for which the judgment should be reversed. In the view of the case taken by the plaintiff in error, that the action lay against the company only, there would be force in some of the exceptions taken at the trial. But the evidence of the plaintiff below presented a case of individual overreaching on part of the defendant, and it was so submitted to the jury, whose verdict establishes this...
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