Kendall v. Wilson

The opinion of the court was delivered by Steele, J. The plaintiffs purchased of the defendant a machine which it was pretended embodied a new discovery in mechanics by which perpetual motion could be produced, but which in fact was a humbug, the motive power being ordinary clock work artfully concealed in the base of the machine. The plaintiffs having offered to return the machine, seek in this action to recover of the defendant the money they paid him for the article. I. The main defence to this action set up by the defendant was ■that the plaintiffs made their purchase, understanding that the [571] machine was a humbug. If this defence had been established by the proof it would have been sufficient, for the plaintiffs would have received just what they bargained for. The jury have found that such was not the character of the purchase, but that the plaintiffs were imposed upon and parted with their money in reliance upon the defendant’s false representation that the machine was what it purported to be. Under the charge of the court the jury have found beyond this, that the deception was so skilful that men of ordinary prudence and judgment would fail to detect it. This is more than the plaintiff was bound to establish in order to become entitled to a recovery, for the law will afford relief even to the simple and credulous who have been duped by art and falsehood. II. But it is urged that the plaintiffs can not. recover all they paid, because their purchase included beside the machine the secret of its construction, and this secret they have not been able to return, and have not even kept it to themselves, or refrained from using it. It is obvious that if they retain any part of their purchase, the plaintiffs can not be entitled as a matter of law to recover the whole of the purchase money, but the case shows that the secret which was communicated to them was not the secret they bargained for. The secret which the defendant agreed to impart was the art of “ so stringing the balls on the rim of the wheel as to produce a shifting of the center of gravity and cause perpetual motion.” The secret he did impart was that he himself possessed no such secret as he had bargained to communicate but that the whole motion was produced by concealed clock work. This latter secret was a cheat, and the plaintiffs did not buy it. On no principle can it be estimated in the defendant’s favor in assessing the damages. It is true as urged, that the secret might have been valuable as a harmless and curious puzzle, and might have been sold as such, but such was not this case, as found by the jury. An agreement to communicate the secret of veritable perpetual motion is not answered at all by communicating the secret of concealing clock work so as to puzzle the uninitiated with the appearance of perpetual motion. If the entire consideration of the two hundred dollars had been this promise to instruct [572] the plaintiffs in the art of making perpetual motion, the plaintiffs,; on learning that the defendant could not communicate the art,, would have been entitled to the return of their money without any offer to rescind, and they would be under no obligation with reference to the other secret which was in fact communicated.. Such other secret or information was not tangible property, and can not be considered as in any sense property or value, unless-the parties, by fair agreement between themselves, stipulated to-so treat it. The secret not having been purchased, the plaintiffs were at liberty to treat it as a piece of information voluntarily imparted to them. III. The subsequent use of this secret which the plaintiffs did not buy. does not make them the debtors of the defendant, nor does it make their honest bargain for a different art or secret a delictum. The maxim in pari delicto potior est conditio defendentis has, therefore, no application in determining the respective rights of the parties arising under this sale. Instead of its appearing that the plaintiffs were equally in fault with the defendant, in the contract, it does not appear that they were in any fault. IV. It is true that in both counts of the declaration the jDlaint-iffs set out a contract, but the gravamen of both counts is laid as the deceit by the practice of which the plaintiffs were induced to-make a contract and part with their money. Both counts are, therefore, in case ex delicto and there is no misjoinder. Judgment is affirmed.