Pennock v. Sharp

McBRIDE, C. J. Both the pleadings and the briefs have traveled very far afield in this controversy. Reduced to its ultimate terms the complaint alleges the payment to defendant of $1,500 on a contract for the purchase of a one-fourth interest in defendant’s business at $5,000, a mutual agreement to rescind the contract and a promise by defendant to repay the $1,500 received by him. The alleged fraudulent-representations are merely matters of inducement, explaining why the plaintiff demanded a rescission and could Rave been omitted without impairing the sufficiency of the complaint. In this case we are bound by the findings of the court below if there is any evidence to sustain them, and have no authority to inqirre into the comparative weight of the testimony. Plaintiff and his wife testified with great positiveness as to the representations made by defendant and there can be no doubt but that if he did malm them they were untrue, and that he could not have been ignorant of their falsity. 1, 2. Plaintiff also testified positively as to the agreement with defendant that the contract should be rescinded and that defendant should return to plaintiff the purchase money already paid him. It is true that all this is strongly denied by defendant in his testimony, but under Section 3 of Article YII of our Constitution, the court sitting as a, jury was the exclusive judge of the facts and we have no authority to disturb its findings, and indeed upon consideration of the whole testimony we have no disposition to do so. The complaint did not pray for interest and the allowance thereof constitutes a technical error, which, however, does not affect the substantial merits of the controversy. [524] The judgment will he modified here so as to eliminate the item of interest and otherwise affirmed. Neither party will recover costs in this court. Modified. Burnett, Harris and Bennett, JJ., concur.