Atherholt v. Hughes

Opinion by Mb. Justice Fell, This action was brought to recover a balance claimed on a written contract for the purchase of standing timber by the defendant. The contract included the timber on a wood lot which was part of the plaintiff’s farm. The lot was described as a part of the farm containing about fifty-four acres, and included all the timber not in the fields under cultivation. The lot contained only thirty-two acres. This fact was not known by the defendant until a part of the timber had been cut and removed. The defense was a partial failure of consideration because of the false representations made by the plaintiffs as to the acreage of the lot. In support of this defense the testimony of a number of witnesses was received to show that the negotiations which preceded the agreement and culminated in it were not for the purchase of the timber for a gross sum for the whole lot but for a purchase at a fixed price per acre ; that after a price per acre had been agreed upon and the agreement was to be put in writing, the defendant’s agent and his attorney desired to have a survey made in order to ascertain the price to be named; that to this the plaintiffs objected and stated that they had had a survey made a few days before and knew that the lot contained exactly fifty-four acres and fifty-two perches; that this statement was deliberately false, because the plaintiffs then had in their possession the certificate of the surveyor which showed that the lot contained only thirty-two acres ; that the defendant [160] had made no examination and taken no means to ascertain the acreage, and relying wholly on the plaintiff’s statement in relation thereto had agreed to the naming of a price ascertained by multiplying the agreed price per acre by the number of acres the lot was said to contain. This testimony was- withdrawn by the court from the consideration of the jury on the ground that the writing was the only evidence of the agreement, and a verdict was directed for the consideration named less the sum of the payments that had been made on account. The withdrawing of this testimony was error. The statements of these witnesses Avere clear, precise and positive, and if they,were correct the defendant had been induced to execute the agreement by means of fraud practised by the plaintiffs. It is always competent for the defendant to prove that he was induced to enter into a written agreement by reason of fraudulent representations by the plaintiff of material facts going to the consideration, on the faith on which he acted. The purpose of such testimony is not to alter or vary the terms of a written contract by parol evidence but to show a failure of consideration which in equity entitles the defendant to relief in whole or in part from his written obligation. In Stubbs v. King, 14 Sergeant & Rawle, 206, an action on a bond for the purchase money of a tract of land as to the boundaries of which deception had been practised, it was said by Judge Gibson that “ where a continued misapprehension of material facts has been induced on the part of one by the misrepresentations of the other it is obvious that the execution of the writing ought not to extinguish the right of the injured party to show the fraud by which his assent to the contract was obtained.” This doctrine had been applied in a number of earlier cases and it has since been uniformly held that anything that would entitle a defendant in an action on a specialty to relief in a court of equity will be a good defense in a court of law, where as in this state equity is administered through the medium of legal forms : McCulloch v. McKee, 16 Pa. 289 ; County of Schuylkill v. Copley, 67 Pa. 386. The grounds for relief were quite as strong as those presented in Brotherton Brothers v. Reynolds, 164 Pa. 134, where a bill to rescind a contract for the sale of timber was sustained on the grounds of fraudulent representations by the vendor as to the quantity, in which it was said by [161] our Brother Dean : “ This is not the case of buyers relying upon an imperfect investigation of their own, as in Mahaffey v. Ferguson, 156 Pa. 156, cited by the appellant, but the case of a buyer relying upon a false estimate of a vendor and his confidence increased by the further falsehood still more persuasive.” In this case reliance was placed on the assertion of a fact. The assertion was made to prevent investigation, and if false it was false to the knowledge of the vendor and made with the intent to deceive. The judgment is reversed with a venire facias de novo.