Babcock v. Day

Mr. Justice Clark delivered the opinion of the court, October 1st 1883. This appeal is taken, under the Act of 4th April, 1877, to the decree of the Court of Common Pleas of Warren county, refusing to open a.judgment, entered upon a single bill, by' virtue of a warrant of attorney contained therein, in favor of E. II. Day against Frank O. Babcock, for $1,200. The application to open a judgment, whether entered upon a judgment note or otherwise, is an appeal to the discretion of the coart. The only question raised here, in such case, therefore, is whether the court rightly exercised that discretion under the evidence : Earley’s Appeal, 90 Penn. St. 321. This court will not, except for plain error, review the sound discretion of the court below, in weighing the evidence; the same weight will be given to the conclusion of the court upon questions of fact, as is given to the report of an auditor, or the finding of a jury : Bedell’s Appeal, 87 Penn. St. 510; McConnell’s Appeal, 97 Penn. St. 31. When, however, the judgment of the court is based upon a deduction from other facts, the conclusion, being the result of reasoning, is subject to revision and correction if erroneous: Hindman’s Appeal, 85 Penn. St. 466; Milligan’s Appeal, 97 Penn. St. 525. We are weil satisfied, from the testimony, that there was no misrepresentation made by Day to influence Babcock in the purchase; this fact the court distinctly finds, — and we think the court was certainly right. Babcock’s testimony does not clearly establish the fact that any representations were made by Day, as to the location of the barns; and being a party to the [8] controversy, it is fair to assume that he testified as strongly in his own interest as the truth would allow. He says, “ I had no reason to doubt, before I went to Day, that the barns were on the property. I supposed they were on it. He told me the Mark and Priscilla York property was his, barn, houses and all.” He further testifies, in apparent explanation of this : — “ I don’t know as he said there was a house or barn on it.” “ I don’t recollect asking Mr. Day whether the barns were on the property.” “I don’t recollect any discussion between Mr. Day and myself, about the improvements on the property.” “ I don’t know as I had any reason to suppose Mr. Day knew any more about the property than I did.” “ I know of no fact that leads me to suppose Mr. Day knew of any claim to them ” (the barns). It was certainly the intention of the parties to this transaction, that Day should transfer to Babcock such interest only as he held by the sheriff’s deed; the writings clearly indicated this, the transfer was of “the within deed and the premises thereby conveyed.” Ho larger bomidary and no greater estate was in contemplation of the parties. The nature of the transaction was unmistakable. There was no reckless assertion— no warranty — no concealment — no deception or fraud ; they were both sincere and honest, both may have been mistaken. Ho hostile claim appeared, no suspicion even attached. Their opportunities for knowing the location of the barns -were at least equal. Babcock lived on an adjoining farm, knew the lines, and directed the subsequent survey. This is not, therefore, the case of a person selling lands which he did not own, and for which he could not make title. The description in the deed was by metes and bounds, and the deed and transfer were effective to vest the title in Babcock. There was no defect in the title to the lands described in the deed, and the truth, as to the actual location of the barns, was as easily ascertainable by one of the parties as the other. The mistake of the parties, however, which resulted from the fault of neither, was so essential, so material and substantial, as that it may reasonably be supposed that, but for the misdescription, they might never have entered into the contract at all. Under the peculiar and special facts of this case, if the injury had been but small, as compared with the consideration, Ave might hold the defendant to be Avithout remedy, but the magnitude of the injury is such, that the defendant should obtain relief in some form. He must not however hold to the profits of his contract, and demand compensation for his loss. He should put the plaintiff in statu quo, tendera reconveyance, demand and sue for a rescission. This is, we think, his proper [9] and indeed his only remedy. ¥e cannot mate a contract for the parties which they never made for themselves. The judgment is affirmed.