Philadelphia Bourse v. Downing , 6 Pa. Super. 590 ( 1898 )

Opinion by

Beaver, J.,

The affidavit of defense in this case was clearly insufficient. It was indefinite. There are at least two distinct representations set out in the affidavit. Which of them is alleged to be false? Upon which of them did the defendants rely? We cannot tell. It is important, from every point of view, that the affidavit should set forth whether they relied upon the representation “ that all of the largest retail coal dealers in the city of Philadelphia had or were about to subscribe to the said stock ” or upon that which alleged “ that the enterprise was intended to foster and encourage the trade of the retail coal dealers in the city of Philadelphia and who, if thus interested as stockholders, would be of service to each other.”

Independently of this, however, were the representations such as would justify the rescission of the contract set forth in the plaintiff’s statement? We think not. At the most they constituted the expression of an opinion as to what would be done by the largest retail coal dealers in the city of Philadelphia, and as to the effect which such subscription would have in bringing these traders together for their mutual benefit. There was no distinct statement of a material fact known to the person alleged to have been the agent of the plaintiff, and unknown to the defendants, which would justify the rescission of the contract. The benefits to be derived from the founding of the institution, to the stock of which the defendants were invited to subscribe, may or may not result as alleged, but as to this they had quite as good opportunities of judging as the person who secured their subscription.

There is no allegation that they made inquiry as to who the largest retail coal dealers, whose subscriptions were expected, were. Indeed the answer to such a question would necessarily have been a matter of conjecture. Equally difficult would it have been to determine who the largest retail coal dealers were. Opinions as to that question would doubtless differ. The representations lack all the essential elements necessary to establish fraud, which will justify the rescission of a written contract: Southern Development Co. v. Silva, 125 U. S. 247; Brown v. Eccles, 2 Pa. Superior Ct. 192.

The judgment is affirmed.