McCandless v. Young

Mr. Justice Sterrett

delivered the opinion of the court, Janu3d 1881.

The vital question, on the trial of this case in the court below, was the scienter of the defendant at the time he made the representations on which the action is grounded. The charge of the learned judge contains a clear and accurate statement of the law applicable to the controlling facts of the case as we gather them from the paper-books and admissions of counsel. It is not denied that defendant below represented to plaintiff, when the latter was 'about to purchase his farm, that it contained one hundred and eighty-six acres,- nor can it be doubted that the representation was made for the purpose of inducing him to buy and pay for that quantity of land. It is conceded that a subsequent survey of the farm revealed the fact that it contained about thirty-eight acres less than was represented. The plaintiff below, as the basis of his suit brought to recover the price which he paid for the deficiency, alleged that the representation was falsely and fraudulently made, with intent to cheat and defraud, by inducing him to buy and pay for more land than the tract actually contained; that the defendant at that time well knew there was not more than one hundred and fifty acres in the tract, but, notwithstanding this knowledge, he falsely and with the fraudulent intent aforesaid, represented that it contained one hundred and eighty-six acres.

The plaintiff introduced testimony to prove these allegations. ■On the other hand, the defendant denied that he knew there -was less than one hundred and eighty-six acres in the farm, and contended that he acted honestly and in good faith, believing at the time that it did contain the number of acres he represented; but admitted that he had since ascertained he was mistaken. The questions of fact thus involved were very fairly submitted to the jury and we fail to discover any ground on which to base the first assignment of error. On tb.e contrary, if the court had charged that under the pleadings and evidence the plaintiff could not recover, it clearly would have been error.

'The subject of complaint in the second and third assignments is the rejection of the offers of testimony therein specified. It may be that the plaintiff in error should have been permitted to prove the matters embodied in these offers, and that if proved, as we must assume they would have been, they would have tended to corroborate his own testimony; but he has failed to satisfy us that any substantial error was committed in excluding the testimony as irrelevant. The relevancy of testimony often depends on the circumstances under which it is offered, the state of the evidence then Itefore the court and jury; and hence it is important in such cases that we should be furnished with the testimony, so that we may be able to properly understand the bearing of that which is alleged to have been improperly rejected or received, as the ease may be. The seventeenth rule of court, specifying what the paper-book of the plaintiff in error shall contain, requires “ an appendix containing the evidence.” This does not mean the evidence of either the plaintiff or defendant alone, nor such excerpts therefrom as he may choose to present. . To sanction such a practice would often result injuriously to the defendant in error and at the same time be unfair to the court below.

The defendant in error contends that if we had before us the evidence which preceded the rejected offers, it would appear to us, as it did to the learned judge of the Common Pleas, that the rejected testimony was wholly irrelevant. In the absence of that evidence, how can we undertake to say that this is not so ? The presumption is that the ruling of the court was correct, and that should prevail until the contrary is made manifest in the regular and orderly way. This has not been done in the present case, and the judgment of the Court of Common Pleas should therefore be affirmed. ■

Judgment affirmed.