Weaver v. Cone , 1899 Pa. Super. LEXIS 225 ( 1899 )

Opinion by

Beeber, J.,

This was an action of deceit tried before a referee. Ten exceptions were filed to his report which were sustained by the court below. As that court filed no opinion we are at a loss to know which one was, or whether all of the ten exceptions were sustained. We can, however, arrive at a proper disposition of the whole case if we consider it in the aspects in which it is presented to this court by the defendant. He contends that there are two complete defenses to the suit, first, the evidence to support an action of deceit is inadequate, second, there is no competent legal evidence of damages sustained by the plaintiff.

Whether there was adequate evidence to support the action of deceit is a question of fact. The referee, in a very careful and well considered report, has found the existence of all the facts necessary to sustain the action. His finding in this respect is attacked by the defendant on two grounds. He contends that there was no deceit practiced by the defendant, and that the plaintiff did not rely on it, even if there was any deceit. As to whether there was any deceit it is fortunate that there is no substantial difference as to what it was. The witnesses on both sides of this question, being only the plaintiff and defendant, agree substantially in what was said, although the defendant says that the meaning which the plaintiff understood, as expressed by what was said by the defendant, was not justified by what the defendant did say. The plaintiff proved that he sold his stock at $80.00 per share because the defendant had told him that that was the price which he, the defendant, ;got for his stock, and that he, the plaintiff, relied on this when he sold. The defendant says that he told the plaintiff that he got that price for his stock, but that he could not tell him anything more about it. His counsel argue that from this language the defendant meant to say that he got at least eighty, and of course left unsaid whether he got anything additional. The defendant testifies that when he said, “ I got eighty, but I will say nothing more about it,” he meant to say that he got at least eighty. Even if we should agree that this is what the defendant meant we are not surprised to find that the referee was not disposed to give as much credit to his testimony as he gave to that of the plaintiff; for even if defendant did only mean to convey the impression that he got at least eighty it can scarcely be said that he was entirely frank under the circumstances. He heard the plaintiff say to the broker representing the purchaser, that he would not take less than what defendant had received. This was the time for defendant to speak, because he could not fail to see that the plaintiff was fixing the price of his stock from what he had understood the defendant to say was the price he had got for his stock. That this is so appears also by the defendant’s own testimony where he says that plaintiff when they came out of the broker’s office said to him, u Is this all you got for your stock? — and I told him that was what I got.” Had there been any doubt before, the answer to this question removes it. In view of this answer we do not see how the referee could have come to any other conclusion than that the conduct and language of the defendant were such as to deceive the plaintiff.

Did the evidence show that plaintiff relied upon the false statement of the defendant? Defendant contends that it does not, because plaintiff knew that the price at which defendant had sold his stock was not a fact that affected the value of his own stock, and also because his own testimony shows that he did not rely upon it. To sustain his contention the testimony is quoted which shows that plaintiff said that sometimes minority stock was worth more than majority stock, and that you could not tell from majority stock what minority stock is worth. It is argued from this that the plaintiff knew that he ought not and could not rely on the price at which the defendant sold his stock as a fact to affect the value of his own stock. But this argument overlooks the facts of this case. It must be remembered that the evidence shows that the plaintiff did not know avIio was the purchaser, and was groping about in the dark as to tire real price which he could obtain for his stock. Under such circumstances, the very fact of the uncertainty of the relative value of the majority and minority stock may have been the reason why plaintiff preferred to fix the price at which he would sell his stock the same at which the defendant sold his. We do not think that the inability to judge the value of the minority stock from what majority stock was worth throws any light on the question whether the plaintiff relied, on the false statement. If anything, the uncertainty, of the relative value would furnish an additional reason why it would be extremely probable that the plaintiff, under the facts in this case, would consider it the safest and best for him to fix the price of his stock the same as the price of the defendant’s stock.

Still less force is there in the argument by defendant’s counsel drawn from the plaintiff’s testimony. This question was put to plaintiff: “Q. You relied on the fact that he sold the stock at eighty and not .his opinion of the value of the stock?' A. Not at all. I was offered 105 for the stock before that.” It is strenuously urged that this evidence ought to have satisfied the referee that the plaintiff had not relied on the false statement. The referee, in his report, has shown that this answer standing alone by no means bears the interpretation put upon it by the defendant. It must be remembered that the testimony of the witness as a whole must be reconciled, if it can be, before we conclude that any part of it is deliberately false. With this rule before us it would be our duty to consider the whole of the plaintiff’s testimony to see if it can fairly be said that he meant to convey the idea in his answer to this question which defendant contends he did. If we do this, it seems very clear that the referee was right. In his examination in chief he had said that he relied upon this statement. The question and answer quoted above is from his cross-examination. If there was any doubt as to what was really meant by this answer in his cross-examination it was relieved by the defendant himself in a few questions later where the following occurred : “ Q. I think you said you were not influenced at all by the opinion of Mr. Cone and Dr. Wykoff’s opinion as to the stock; it was merely the fact that Cone had sold at eighty. That was the determining fact in your mind ? A. That was the determining fact in my mind.” If there had been any obscurity before as to the real meaning of the witness it would seem that this answer, drawn out by the defendant himself, would show conclusively that the plaintiff solely relied upon the fact that defendant had told him that he sold at eighty. We have carefully considered all the testimony in the case, and we can see no reason whatever why the referee’s findings of the facts should not be sustained.

The question of law involved in the case is whether there is competent legal evidence of damages sustained by the plaintiff. His damages are to equal the loss which he sustained by reason of the deceit practiced upon him by the defendant: High v. Berret, 148 Pa. 261. As was said by Mr. Justice Agnew, upon the question of the proper measure of damages, in Kountz v. Kirkpatrick, 72 Pa. 376, “compensation being the true purpose of the law, it is obvious that the means employed, in other words, the evidence to ascertain compensation, must be such as truly reaches tins end.” In the usual case of a suit by the vendee against the vendor for the breach of his contract to deliver chattels, the general rule is that the measure is the difference between the contract price and the market value of the article at the time and place of delivery under the contract. But the jury are not necessarily bound by this rule if they can find another more in accordance with the justice of the case. They may have evidence of other kinds to show the value. The law lays down “no one mode as the exclusive one for settling the value of an article in market at or about a given time; it is a matter to be left to the jury on the evidence: ” McCombs v. McKennan, 2 W. & S. 216. If it appears that the difference between the contract price and the market value does not in reality show the loss for which compensation is to be made evidence will be received of other facts which show the actual loss: Theiss v. Weiss, 166 Pa. 9.

The reason of this rule is found in the fact that when the vendee is deprived of the chattels which the vendor had agreed to deliver he can go into the market and purchase others at the market value. “But it is manifest that this would not remunerate him, where the article could not be obtained elsewhere, or where, from restrictions on its production or other causes, its price is necessarily subject to very considerable fluctuations. . . . The case of stock is an exception to the general rule applicable to chattels. It is made an exception in obedi-i ence to the paramount obligation to indemnify the party for his loss. The rule of convenience gives place to the rule of justice. The moment we proceed, on this ground, to take it out of the general rule, we are obliged to substitute one that will do complete justice to the party injured: ” Bank of Montgomery v. Reese, 26 Pa. 143. Whilst we do not understand that this last authority decides that the case of sales of stock is always excluded from the operation' of the rule, we think it clearly shows that if the rule, as applied to chattels generally, does not measure the actual loss for which compensation is to be given, it will not be applied. The plaintiff, in a case where he brings a suit as vendee, is entitled to be put in the position he would have been in had the vendor’s contract been performed. Where this can be accomplished by his purchasing other goods at their market value, the excess of what he has to pay furnishes a reasonably accurate estimate of the amount of his damage. When, however, the circumstances are such that he cannot supply himself the rule does not apply, for the necessary data cannot be obtained. In such cases the actual loss must be determined by other evidence which shows the amount of it with a reasonable degree of certainty: McHose v. Fulmer, 73 Pa. 365. Absolute certainty in all cases is impracticable and not required.

The facts in this case are peculiar. It is not the usual case of deceit where plaintiff is induced to buy property, and the measure of his damage is the difference between the price at which he bought and its real value. On the contrary he was induced to sell his stock by the deceit. Had it appeared that the stock thus parted with could have readily been supplied by a purchase in the open market, the difference between what he got for his stock and what it would have cost to get other stock of an equal amount might be a very fair measure of the damage. This, however, is impossible, for the stock is now in the hands of a single owner and not on the market. But to apply, such a general rule to a case where the facts are so peculiar as they are in this case would not give the plaintiff compensation for his loss, which is the great object of the action. The stock of this company was limited in quantity and in the hands of a comparatively few people. Immediately before the plaintiff came to defendant, in obedience to a notice from the latter, for the purpose of selling his stock, defendant had sold to another enough stock to give him the majority. At the same time he had agreed to assist the purchaser to acquire all the minority stock of which plaintiff’s was a part. Plaintiff told defendant he intended to sell his stock at the price which defendant had got, which he was induced to believe was $80.00 per share. It further appeared that there was a purchaser who had determined to buy all the rest of the stock and who actually did buy it, at prices ranging between $90.00 and $125 per share. By the defendant’s deceit plaintiff was induced to part with his at a very much less rate than what the others got. Under such circumstances, with a purchaser ready and anxious to buy every share of stock, the plaintiff, ready and willing to sell, and induced by defendant’s deceit to part with his stock, lost his chance to deal with the purchaser as the other stockholders were doing or had done. The value of that chance could not be determined by a market value evidenced by public sales, for the stock was not sold at such sales, nor could it be determined by the intrinsic value of the stock, for none of it was sold for that value from the time plaintiff got his notice of the sales going on and determined to sell. The other minority stock was sold for more than plaintiff got to a purchaser who it was proved was determined to buy it all. The price which he was willing to pay was not fixed either by its intrinsic or by its market value. This being the situation of the parties, we cannot agree that the market value as evidenced by public sales was the only criterion by which to measure the plaintiff’s loss. To do so would be to abandon the proper object of damages, which is compensation, at the behest of a rule, which, at best, is not the sole or infallible test. We agree with the verdict which the referee found as to the amount of the loss which plaintiff suffered by reason of the deceit. It was based on sufficient evidence and determined as to amount in a manner substantially the same as pursued by a jury when assessing damages for land taken by the right of eminent domain, where they ñx the amount from conflicting evidence of the difference in value before and after taking, or when fixing the amount of damage where it is to be measured by the difference between the contract price and market value, the evidence as to the latter varying or being contradictory.

We are satisfied that our conclusion is not in conflict with the authorities. The damages awarded are, in our opinion, proximate in the sense that they are such as the wrongdoer must have contemplated as the probable consequence of his misconduct, and certain in the sense that they are not problematical. In the case of Loewer v. Harris, 57 Fed. Rep. 368, an attempt was made to recover damages to be measured and fixed in amount by tbe profits of a contract of sale which the plaintiff expected to make, but had not made, of the property which he had been induced to buy by deceit. This attempt failed because it was held that the proof did not show that there had been any binding contract made out of which profits could arise. There was no evidence, as in this case, that there was a purchaser who was, at the time of the sale to plaintiff, ready and willing to buy and who actually did buy all the property that there was of the kind bought by the plaintiff, nor that the person whose fraud induced the sale was acting in behalf of the purchaser, who, to his knowledge, intended to buy all the property of the kind of which plaintiff’s was a part. The most that that case decides is that the profits of an expected but unexecuted contract of resale of the property purchased under the influence of deceit cannot be recovered as damages in an action for the deceit. The principle of our conclusion is sustained by the case of Adams Express Co. v. Egbert, 36 Pa. 360. That was a suit to recover damages for the failure of the express company to deliver the plaintiff’s box of drawings of plans for an almshouse in time for him to compete for the premium to be given to the successful competitor. After showing that the loss of the opportunity to compete for the prize was not too remote to be considered, and that its worth is capable of being measured, Mr. Justice ST3R.ONG says: “ Whether in the present case this plaintiff sustained any actual injury depended upon the degree of. probability there was that he would have been a successful competitor if the contract had not been broken. If his plans were entirely defective, if they were suited better for a bridge than for an almshouse, it cannot be claimed that he was damaged.” In our present case the evidence shows beyond question a purchaser for plaintiff’s stock, the prices he was paying, the knowledge of the defendant that there was such a purchaser, and the intent of the plaintiff to sell at the same price at which defendant had sold. All these facts being clearly established, the loss of the opportunity to sell, which defendant’s deceit caused plaintiff, was not too remote to be considered, and its worth was capable of being measured.

The judgment of the court below sustaining the exceptions to the referee’s report is reversed, the exceptions dismissed and the report of referee is confirmed with costs to be paid by the appellee.