Young v. Edwards , 1872 Pa. LEXIS 236 ( 1872 )

The opinion of the court was delivered, by

Williams, J.

There was no error in overruling the offer in evidence of the declarations of the plaintiff below as to the amount for which he had sold his interest in the Indiana county property conveyed to him by the defendant. They were offered for the purpose of showing that the property was worth much more than that in Cambria county conveyed to the defendant by the plaintiff. Undoubtedly they were competent and legitimate for this purpose if they had been offered in chief. But as a general rule a party cannot claim as a right to give as evidence in rebuttal that which he might have given in chief: Stetson v. Croskey, 2 P. F. Smith 230. The evidence proposed to be given was merely cumulative and not within any exception to the rule; and in such case it is well settled that it is within the discretion of the court to admit or reject evidence offered in rebuttal which might have been given in chief. But it is insisted that the evidence ought to have been received because it tended directly to rebut the testimony of Lytle and McKeage. If admissible for this purpose, it does not follow that it was error to reject it. A party cannot offer evidence for a specified purpose, and complain when it is rejected that it was legitimate for another and distinct purpose: Gaines v. Commonwealth, 14 Wright 319.

Nor was there error in charging the jury as complained of in the second assignment. There was not a particle of evidence tending to show that the saw-mill and grist-mill are not on the land described in the plaintiff’s deed to the defendant. The court was, therefore, clearly .right in not submitting the question to the jury, and in instructing them “ that the deed which purports to convey the land, and the description and references therein are sufficient to pass the saw-mill and grist-mill to the vendee in the deed.” If, as is not denied, the plaintiff below at the time he executed the deed, had title to the land on which the saw-mill and grist-mill are erected, there can be no doubt of the correctness of the instruction that the title vested in the defendant by the conveyance.

The next matter of complaint is, that the court erred in charging the jury in substance that the deficiency in the quantity of the land agreed to be, and actually conveyed, by the plaintiff to the defendant was not great enough to afford any evidence of fraud and misrepresentation, and in not submitting the question to the jury for their determination. It appears from the charge of the court that the defendant claimed that there is a deficiency of twenty-four acres. But we see no evidence of such deficiency. By the articles of agreement the plaintiff stipulated to sell and convey to the defendant three hundred and fifty acres of land in the townships of Blacklick and Carroll, Cambria county, be the same more or less, having a flouring-mill and saw-mill thereon erected. The deed which he executed in pursuance thereof, and which was accepted by the defendant without objection, purports to convey in the aggregate about 302 acres and 72 perches more or less, exclusive of the parcels excepted and reserved from the conveyance. The actual quantity conveyed, as ascertained by the survey subsequently made for the defendant, is 306 acres and 71 perches. There was then no foundation for the alleged claim that there was a deficiency in the quantity of land which the deed purported to convey. The plaintiff was not bound, by the terms of the agreement, to convey a specific quantity of land to the defendant, and as the agreement was merged in the conveyance, the latter must be regarded as the final contract between the parties. Whether the plaintiff in showing the defendant the land, at the time the parties were negotiating the exchange, falsely represented that the Bradley tract, which was well timbered and more valuable than any portion embraced in the deed, was included in and formed part of that which he proposed to exchange, was fairly submitted to the jury with the instruction that if the plaintiff did so represent, and the defendant relying on the representation entered into the contract, it would be such a misrepresentation as would entitle him to a deduction from the judgments for the purchase-money to an amount equal to the damage sustained by reason of the misrepresentation. And the jury were properly told that the damage in such case would be the difference in the value of that which he thought he was getting, and that which he actually did get by the deed. We think that the defendant below has no reason to complain of the charge as it respects that part of his defence which was founded on the alleged fraud and misrepresentation of the plaintiff in regard to the location, quantity and quality of land which he proposed to sell or exchange. The jury were told by the learned judge that it would not matter whether the plaintiff wilfully falsified as to this Bradley tract, or was only mistaken as to the boundaries of his own tract. When he undertook to point out his own land he was bound to know where it was; and whether he made a mistake or uttered a lie, he cannot claim payment for that which he did not convey.

But while the instructions in this respect were proper, we think that the rule laid down by the court as to the amount of proof necessary to establish the defence to the judgments, on the ground of the alleged fraud and misrepresentation of the plaintiff, was erroneous and calculated to mislead the jury. The court said: “ The plaintiff has four judgments entered on solemn obligations, signed and sealed by the defendant. By these he acknowledges to owe four thousand dollars. To set aside or vary this contract; to say that he shall pay only part of this amount or none of it, requires that the evidence of false representations, and that Young relied on them, must be clear and explicit, must lead to a satisfactory and certain conclusion. The law does not use the words “weight of testimony” concerning evidence to overthrow and set aside solemn duties and obligations; it uses stronger words, and demands that the evidence shall be clear and explicit, and lead to a satisfactory and certain conclusion. Is the evidence in this case of that character ?”

If by “ certain conclusion ” tbe court meant, as it evidently did, a conclusion in regard to which there must be no doubt resting on the minds of the jury, it needs no argument or authority to show that the instruction was erroneous. In civil cases the jury determine facts according to the weight of evidence, and not by its sufficiency to produce conviction of the absolute certainty of the conclusion arrived at. In most cases of conflicting evidence such a degree or amount of proof would not be attainable, and to require it would be tantamount to a denial of justice. If the evidence is sufficient to satisfy the mind and conscience of a common man, and so to convince him that he would venture to act upon that conviction in matters of the highest concern and importance to his own interest, 1 Stark. Evid. 514, it is all that the law requires, though such conviction may come short of absolute certainty. There is nothing peculiar in the determination of a question of fraud that makes it an exception to the general rule. Where there is evidence of fraud, its existence must be determined like any other fact. But in this case the jury were told in effect that, in determining the question, they must not be governed by the weight of evidence; that the evidence tending to show the alleged fraud must lead to a satisfactory and certain conclusion ; otherwise, such is the plain implication, the evidence must be disregarded. What else could the jury have understood from this instruction, than that the evidence of the fraud must be so clear and convincing as to leave no doubt resting on their minds ? If this were the rule, it would be difficult to establish fraud in any case. But the law does not require so high a degree of proof. If the evidence satisfies an unprejudiced mind, beyond reasonable doubt, it is sufficient.

Judgment reversed, and a venire de novo awarded.