McElwee v. Chandler , 198 Pa. 575 ( 1901 )

Opinion by

Mb. Justice Potteb,

This is an action brought to recover the purchase money upon a rescission of the contract of sale, by the plaintiff, who made the purchase from the defendants, of certain shares of stock in the Multiple Power Company. The plaintiff claimed to have made the purchase, individually, from the defendants, upon the representation that the indebtedness of the company was only $3,000. Plaintiff claimed also, that at the time of the purchase, he had no means of knowing the facts as to the true condition of the company, and therefore, it was agreed that he should be given an opportunity to investigate. The result of his examination disclosed a much larger indebtedness than had been represented, and that the company was insolvent. The contract was thereupon rescinded; tender of the stock in return was made; and the purchase money demanded; which being refused, this suit was brought in assumpsit. At the trial, the court below instructed the jury that it appeared, that the plaintiff bought the stock upon the strength of a certain written statement, made at the time, stipulating that one half of the money to be paid should be applied to the liquidation of any indebtedness of the Multiple Power Company, “said indebtedness not exceeding $8,000.” And that if the jury found as a fact that this statement as to the indebtedness was false and fraudulent, the plaintiff was not bound by the purchase. The action of the court in thus construing the written instrument, is assigned as error, in the first, second and third specifications. There is no ambiguity in the statement, as to the amount of the indebtedness, then existing upon the part of the company, and it was clearly the duty of the court to construe it, in that respect. These assignments are therefore overruled. The fourth and fifth specifications complain of the refusal to charge as requested by the defendants, upon the theory that they were but custodians for the Multiple Power Company, and therefore not liable. But the evidence does not justify the instruction asked for. The plaintiff testifies squarely that he knew the defendants in no other capacity than principals, and the evidence on the part of the defendants does not disclose the names of any parties other than themselves, as the real owners of the stock. The testimony does indicate that the defendants were the parties chiefly interested in the stock, if they were not the sole owners. These assignments are therefore not sustained. The remaining specifications of error are without merit. The jury were left to find the facts as to the truth or falsity of the representation with regard to the indebtedness. There was ample testimony to sustain the finding of fraudulent and wilful misrepresentation. The indebtedness to the defendants themselves being more than three times the amount set forth in the statement, which was made by the defendants as an inducement to the plaintiff to purchase. As stated above, this action is not brought upon the written agreement between ^the parties, but it is brought to recover the purchase money, upon a rescission of the contract, made individually by the plaintiff with the defendants. The written agreement being evidence of the representation, which the jury has found was false and fraudulent.

The judgment is affirmed.