Weist v. Grant

The opinion of the court was delivered, by Agnew, J. The verdict of the jury establishes that there was no intentional misrepresentation of the yield or richness of the silver-mines, sold by George Coryell, on behalf of himself and Hiekcox and Power to Weist and Myers. This leaves but two questions in the case that require notice. They alleged that Cor-yell before the sale represented that the ore from those mines would yield from $133 to $145, per ton, and that Weist and Myers bought on the faith of this representation in Philadelphia, the mines being in Colorado territory, and out of reach before closing the contract. By actual assay the ore is found to yield only about fifty dollars a ton; and the garnishees, Weist and Myers, therefore allege a failure of consideration, and claim a right to defend, on the ground of a material false representation of the richness of the mines. But the case is not like Fisher v. Worrall, 5 W. & S. 478, and others of that class, in which the misrepresentation of an occult quantity of land is held to be a defence when the vendee buys on the faith of the representation and not on his own judgment. In this case by the very terms of the agreement, it appears that Weist and Myers did not buy on the faith of any representation, but provided for a prospect and examination of all the mines, by a competent assayer named in the article, as to their availability, richness, duration and con [99] dition; and also if having the requisite machinery to reduce or ■work two or more tons of the ore; and whether he has machinery or not to so reduce the ore, to report to Weist and Myers; the report to be subject to their approval, and if not satisfactory nor approved by them, the agreement to be void. Weist and Myers, therefore, did not rely on the representations of the vendors, but took the most available means to protect themselves against the hazard of a distant purchase. Professor Bruckner, the assayer, made the examination and reported, and on the report, Weist and Myers confirmed the purchase, and paid a large part of the purchase-money. Nothing short of collusion and fraud in the report of the assayer could afford any ground of defence, and this is taken away by the verdict, the question of actual fraud having been submitted to the jury upon the whole case and found against them. The vendees bargained for the report of a, competent assayer before they should be bound by the contract. They have had it and acted upon it, and their mouths are now closed against an allegation of misrepresentation in the inception of the contract. The other question is as to the proportionate interest of G-eorge Hickcox, one of the three vendees, in the purchase-money. It is contended that without proof of his actual interest in the mines', no verdict could be rendered for a specific sum, as his interest was unknown and might be less than this sum. But there is no evidence that Coryell, Hickcox and Powers were mere partners, subject to a settlement among themselves. The largest inferences to be drawn from the contract and the answers of the garnishees in evidence would be that they were joint-tenants and sold as such. The answers admit an unpaid residue of purchase-money of $26,000, while the verdict is for $4086.21, only. The fair presumption from the fact, that, in the sale Hickcox is equally as well as jointly bound for the covenants on part of 'the vendors, is, that his interest in the subject of the contract is equal; otherwise he would have restricted his liability to a minor proportion. There is nothing in the agreement or the answers to rebut this presumption. Though only a primfi facie, and indeed a weak presumption, yet it is sufficient to stand until something is proved to overturn it. This rebutting evidence would naturally come from Hickcox, the defendant, and the garnishees themselves, and not producing it, they cannot complain of the inference of equality of interest as drawn from their acts. The judgment is therefore affirmed.