Cole v. High , 173 Pa. 590 ( 1896 )

Opinion by

Mr. Justice Green,

In this case the action was not founded upon the check for $135 given by the defendant to the plaintiff. Nor was it an action brought for the recovery of the personal chattels which were involved in the transaction between the parties. The cause of action as it is set forth in the plaintiff’s statement appears to be the obtaining by means of fraud and deceit from the plaintiff, of certain chattels named as one lathe, one type writer, one dynamo, and one bicycle. Judged by the common law classification of actions it would be an action of case for deceit. According to the plaintiff’s statement it is a claim to recover damages for not returning the goods fraudulently obtained, and includes an allegation that the defendant converted the goods to his own use. The claim seems to be a mixture of trespass, trover and case for deceit, but the deceit in obtaining the goods is the fundamental element in the right to recover. Without the deceit the case would be simply a sale of goods by the plaintiff to the defendant and the action brought to recover the purchase money. But that is not the cause of action contained in the statement. It follows that, regarding the cause of action as a claim to recover damages for deceitfully obtaining goods, the whole transaction in the course of which the goods were obtained is the real subject of the controversy.

The door is therefore necessarily thrown open to the introduction of all the facts of the transaction in order to determine the merits of the controversy. The learned judge of the court below seems to have regarded the giving of the check as the culmination of all prior negotiations and excluded evidence of what occurred before the check was given, and yet he left the ease to the jury almost entirely upon the question of the fraud and deceit alleged to have been practiced by the defendant. Thus he said to the jury, “ If you are satisfied that he (defendant) intended that this transaction from the beginning to the end of it, until he gave directions not to pay the check, that he intended the check should not be paid, but that he should get the goods, as he did get them, without paying for them, and that he intended to trick the plaintiff out of the goods, then, of course, he is guilty of a fraud, and having obtained the goods by reason of that fraud, your verdict must be for the plaintiff.”

The whole of the charge is of the same import, and we do not say it was an incorrect view of the case. But for that very reason we think that all evidence of facts occurring either before or after the giving of the check which would or could throw light upon the case in that view of it should have been freely admitted. Having said this much in regard to the general aspect of the case we can dispose of the assignments of error in their order. We think the first assignment is hardly sustained simply because the offer was not sufficiently specific. Of course if the defendant had referred to any particular part of the affidavit and asked the plaintiff whether that statement was true or false he should have been allowed to do so. But the offer was simply a general offer to show that in the criminal proceedings the plaintiff swore to statements which were false. Without any specification of any particular statement that was alleged to be false we cannot say there was error in rejecting the offer.

The second assignment was to the rejection of an offer by the defendant to prove that when he gave the check he had money in the bank to meet it. As this would tend to rebut a presumption of fraud in giving it we think clearly the offer should have been admitted and therefore sustain this assignment. We think in view of all the circumstances the third assignment must be sustained. The question at issue was in large part the intent of the defendant in giving the check. By the charge it was made a most important part of the inquiry by the jury. At the time the check was given the goods had not been delivered and the alleged defects in them had not been discovered. Yet the burden of the plaintiff’s case, and of the charge, is, the intent of the defendant in giving the check. It was alleged by the plaintiff that this was part of the fraudulent scheme to get possession of the goods from the beginning, and the court left the question in that way to the jury. We think it was competent for the defendant in view of this aspect of the case to testify to bis intent at the time of giving the check and to fortify it with such an explanation of the facts as would bear upon that subject. The third assignment is sustained.

Upon the same considerations we sustain the fourth assignment. We think it was clearly competent for the defendant to show that he stopped payment of the check by the advice of counsel. It would certainly tend to show in a most important sense that stopping payment of the check was not part of a scheme of fraud from the beginning.

The fifth assignment is to a matter of not much importance, but we think the offer should have been admitted as tending to show some participation by the plaintiff in the delivery of the lathe. It was a very slight circumstance but we cannot say it had no significance. That would be for the jury. We sustain the assignment.

For reasons already stated we sustain the sixth assignment. We do not regard the receipt as concluding both parties, or as showing a settlement of all accounts between them considering the aspect in which the case was presented to the jury. We sustain the seventh assignment for the same reason.

The eight assignment is sustained because the part of the charge objected to assumes the truth of a matter of fact which was denied by the defendant, and it was therefore for the jury.

We think the part of the charge complained of in the ninth assignment gave the jury too much license in the matter of damages. We regard it as contrary to our rule in this class of cases: Erie City Iron Works v. Barher, 102 Pa. 156.

We feel obliged to sustain all the assignments of error from the tenth to the fifteenth both inclusive. This necessity grows out of the character of the action. It is based entirely upon the allegation of fraud and deceit practiced by the defendant in obtaining the goods. If there was no fraud or deceit the defendant is not liable in this action. There is no claim in the plaintiff’s statement for goods sold and delivered. No claim is made upon the check, and we are unable to discover in the statement any cause of action which is not based upon an accusation of fraud, in obtaining the goods. The mere nonpayment of the check is not, of itself alone, any evidence of fraud, especially in view of the defendant’s testimony and theory of the whole transaction. Hence we think there was error in the various rulings complained of in the several assignments we are now considering. Of course if there was fraud in fact there could be a recovery upon the plaintiff’s theory, and under the statement, as the transaction in that aspect would have authorized the plaintiff to rescind the contract and recover just as he claims. But the court by the charge and in answer to the severals points of the defendant denied the necessity of any fraud to accomplish that result, and in so holding there was error, in our judgment.

Judgment reversed and new venire awarded.