Sulkin v. Gilbert , 218 Pa. 255 ( 1907 )

Opinion by

Mr. Justice Stewart,

This case called for binding instructions, but not for the reason assigned. The only witness who testified to the alleged misrepresentations of the vendor ivith respect to the location of the land, was the defendant himself, but his testimony oh this branch of the case was full, clear and explicit. That he was not supported by other witnesses, or, in the opinion of the trial judge, by the admitted facts of the case, would be no sufficient ground for refusing to submit the case to the jury. It might very well be that the jury would see correspondence where the court saw contradiction, or even without this, yet give entire credence to the testimony of the witness. It is a mistake to apply in actions of this kind rules of evidence which obtain in equity proceedings. The sufficienc_y and accuracy of the deed were not impeached ; the court was not asked to reform it in any way ; the defense rested on matters wholly outside of any writing. Did the plaintiff state to the defendant, during the negotiations, that the land described in the deed was located, with respect to a certain stream of water, in the manner represented on the map or blue print exhibited? No matter how this fact was found, it would not be in contradiction of the written agreement or the deed. True, where fraud is set up as a defense in an action of this character, the evidence to establish the fraud must be clear, explicit and indubitable ; but whether it reaches this degree or not is a question for the jury. The testimony of a single witness, even though contradicted by others, may carry conviction to the minds of the jury, and, when this occurs, the law approves and sustains.

The case called for binding instructions for the plaintiff, because there was no evidence that the defendant was induced to enter into the contract of purchase by reason of this alleged misrepresentation. It is just as essential that it should ajipear that the party complaining relied upon the representation, and that but for it he would not have made the contract, as it is that the fact of misrepresentation be established. So long as interest excluded from the witness stand, the jury had no way of determining the question of inducement, except by considering the importance of the matter concerning which the misrepresentation was made, and the situation of the parties to the transaction. These are yet matters for consideration, and there may be cases in which nothing better can be afforded ; but now that the pai’ties may testify in their own behalf, and where, as here, this is done, and the party testifies to the misrepresentation "with great particularity, it is not asking too much to insist that he shall not leave it to the jury to speculate and conjecture as to whether he was influenced by the misrepresentations of which he complains, without some expression from his own lips on that subject. We have looked through the testimony of the defendant with great care, but have failed to find a single expression to indicate that in making this bai’gain, he depended on the statement of the plaintiff as to the location of the land, and was influenced accordingly. Whether this was a careful and studied avoidance, or mere inadvertence, we have no way of knowing. Be that as it may, it was a serious omission. The land which was the subject of the agreement and about which the misrepresentation was alleged to have been made, was distant from the defendant’s mill, which had been operating for eight years, not more than 300 yards. The misrepresentation had regard to its location with respect to a stream of water with which the defendant ivas perfectly familiar. Under such a state of facts, a finding bj7 the jury, as matter of inference purely, that the misrepresentation, if such it was, was the inducement to the contract, without which defendant would not have purchased, could not be sustained. The defendant was ashing the jury to say for him what he failed or declined to say for himself.

Judgment affirmed.