Grauel v. Wolfe

Opinion by Mr. Justice Fell, The findings of fact by a master or referee, based upon his belief as to the credibility of witnesses and the effect to be given to their testimony, are entitled to the same consideration as the verdict of a jury, and should not bo set aside except for manifest error; but when the facts found are mere deductions from undisputed testimony, or from other facts found from the testimony, they are given no greater weight than his findings of law. The rule is well stated by our Brother McCollum: in the opinion in McConomy v. Reed, 152 Pa. 42: “ It may be stated as a general principle that where the evidence is conflicting and the [88] credibility of witnesses is involved a master’s finding upon a question of fact is entitled to tbe same consideration as the verdict of a jury, and will not be' set aside unless it is clearly and palpably against the weight of the testimony. If, however, his finding is a deduction from undisputed facts, or from uncontradicted and credible evidence, the controlling reason for' the application of this principle is not present, because in such a case he has no greater facilities for reaching a correct conclusion than the court has in passing upon the exceptions to his report.” The primary error of the learned referee is in his conclusion that a relation of confidence existed between the vendor and the vendee, and this conclusion is an inference from admitted facts or practically uncontradicted testimony. The transaction was an ordinary one of bargain and sale. The vendee had been in the same kind of business' for forty years, he was thoroughly familiar with the business in all its details, and was as capable of determining the value of what'he bought as was the vendor. He made his own investigation, in his own way, during the negotiation which extended over a period of six months. It is true that when asked to examine the books he declined, saying that he would rely on the vendor’s statement as to the amount of sales and profits, but it is evident that he did not rely on these statements. He instituted and carried on an investigation of his own, and kept it up for weeks ; he saw and conversed with the vendor’s employees repeatedly, he examined the slips on which sales were entered on the order books, and made extracts therefrom without the vendor’s knowledge, and he appears by this means to have become entirely familiar with the character and extent of the business before he bought it. His knowledge thus acquired, if not as full as that which might have been obtained from an examination of the books, appears to have been more satisfactory to him, and we cannot but conclude from the testimony that it was upon this knowledge that he acted. If he undertook to judge for himself, or if he acted upon the knowledge gained in his investigations, to verify the representations made, there was no relation of trust between him and the vendor. Nor do we find that there was in fact any fraudulent representation made by the vendor. It was conceded that the sales of coffee made by the vendor were substantially as represented [89] by him, and the referee does not find that there was any misrepresentation as to the amount of the profits of the business. The uneontradicted evidence from the books produced is that the profits were in excess of the representation made. The only remaining allegation of fraud was that the representation as to the amount of coffee roasted for customers was untrue. Whether the representation made related to the whole amount of coffee roasted or only to that roasted for customers was disputed by the testimony. But taking the view most favorable to the plaintiff, and assuming that the representation related to the roasting of coffee for customers, the testimony would not sustain a finding of fraud. Two expert accountants who had examined the books testified. One found that the whole amount of roasting done for both customers and for sale equaled the amount represented, and as the profits on coffee sold exceeded the profits on roasting done for others, if there was a discrepancy between the facts and the representation, the plaintiff profited by it. The other witness found that the amount appearing from the books was short of the amount represented, but he had not, because of the imperfect manner in which the books were kept, brought the account up to within four months of the time of the sale of the business. When recourse was had to the books the defendant was entitled to have the whole account considered, and we can see no reason for setting aside the conclusion reached from a full examination and adopting that reached by a partial one. The decree of the court is affirmed at the cost of the appellant.