Braunschweiger v. Waits ( 1897 )

Opinion by

Mr. Justice Williams,

A judgment was entered in the court of common pleas of Yenango county in favor of the plaintiffs and against the defendant by virtue of a warrant of attorney for $20,608.81. This judgment was opened on the petition of the defendant representing that the execution of the paper had been induced by misrepresentations. An issue was framed for trial before a jury to determine how much if anything was due to the plaintiffs on the judgment. On the trial it appeared that the paper was executed and delivered under the following circumstances. Waits was an oil producer. The plaintiffs were the owners of a considerable farm known as the “ Astral Oil Refining Company’s farm,” in Cranberry township, Venango county, upon' which were two producing wells. They proposed to sell this farm to Waits. He went with them to see it, and, as he alleges, upon their assurance that the producing wells were yielding five barrels per day, that but fifteen wells had been drilled on the farm, none of which had been dry holes, and that a considerable portion of the land had not been drilled upon at all, he agreed to purchase it for 120,000, and executed the preliminary contract on which the judgment was entered. The title was to be made at the end of ten days. It was not made and tendered for about two months. Meantime the defendant says he learned that the land had been well drilled, at least twenty-three oil wells having been put down upon it, all but two of which had been abandoned, and that these, instead of producing five barrels per day, were producing only about one half of that amount, and at a wholly disproportionate cost, so that the tract was of little value, and would not have been bought by him if its condition had been truly stated to him. In other words his defense was fraud upon the part of the plaintiffs in making the contract of sale. This was the only defense set up by the affidavit on which the rule to open judgment was moved for, and it was the only one raised by the evidence on the trial. It was error therefore to submit to the jury the question of mutual mistake, as was done by the learned judge, in that portion of his charge that is made the subject of the eleventh assignment of error. He said in substance that if the parties dealt under the influence of a mutual mistake, the defendant could avail himself of such mistake, although the jury should conclude that no fraudulent representations had been made by the plaintiffs. If the defendant made the purchase upon his own examination or previous knowledge of the property, and no representations were made to him by the plaintiffs to induce the purchase, the defendant was without a defense. If he bought upon the representations of the plaintiffs, and these representations turned out to be false, then he had a defense. Whether they affirmed that to be true which they knew to be false, or which they knew nothing about, the effect was the same upon the purchaser. It was in either ease a fraud. The question for the jury was whether the purchase was induced by representations materially affecting the value of the land, which were false. If they were false it was of no consequence whether the plaintiffs knew their falsity, or made them without any knowledge on the subject. It was their duty to know, and to make no representations as to the subjects of which they knew nothing. The case of a mutual mistake is well illustrated by Riegel v. The Insurance Company, 153 Pa. 134. Mrs. Riegel held a policy upon the life of a debtor who had been long unheard of and was in fact dead. This fact was not known to her or to the insurance company. Upon the mistaken assumption that he was still alive, and that she was still liable for premiums upon the policy, she made a contract with the insurance company. This contract was made in mutual mistake about a fact of which neither party had or pretended to have, any knowledge whatever. What is alleged here is that the defendant agreed to make this purchase because of representations about facts material to the value of the property, made by the vendors which were false. This if true was a fraud. The instruction complained of opened a way for the jury to find for the defendant without disposing of the question of fraud which was the only question on which the right of the defendant to relief rested. Whether the jury took this way or not it is impossible to tell. It is enough that they might have done so. The instructions complained of in the first and fifth assignments of error may not have misled the jury and probably did not, yet they were wanting in accuracy. The weight of evidence is not a question of mathematics, but depends on its effect in inducing belief. It often happens that one witness standing uncorroborated may tell a story so natural and reasonable in its character, and in a manner so sincere and honest, as to command belief, although several witnesses of equal apparent respectability may contradict him. The manner and appearance of the witness, the character of his story and its inherent probability may be such as to lead a jury to believe his testimony, and accept it as the truth of the transaction to which it relates. The question for the jury is not on which side are the witnesses most numerous, but what testimony do you believe ? In most respects this case was well tried by the learned judge. The only serious error into which he fell is that pointed out by the eleventh assignment of error, and for that it becomes necessary to reverse the judgment and send the case to another jury to be disposed of upon the question of fraud raised by the defendant’s affidavit.

The judgment is reversed and a venire facias de novo awarded.