Blygh v. Samson

Opinion,

Mr. Justice McCollum:

The note in suit was given for one half the price of timber which the payee sold to the makers. The vendees allege that their vendor had no title to one third of the timber which he sold to them, and that they have paid or tendered the price of the timber they received or acquired any title to under their agreement with him. The vendor alleges that he was the owner of, and that they have received, all the timber embraced in the sale.

It is undisputed that the vendor owned a tract of land in Ceres township, containing fifty acres; that he proposed to sell to the vendees all the timber thereon suitable for sawing; that, in company with one of them and for the purpose of making a sale, he visited the tract to view the timber; that while upon the tract or returning from it, he sold the timber to them for $950, and that soon thereafter they paid one half this sum in cash, and gave their note for the balance. It appears from the evidence produced by the vendees that the vendor pointed , out the timber he proposed to sell to them, and said that it was on his lot; that he did not go to any marked lines or corners, but that he designated their location, and these as represented by him enclosed the timber he had pointed out; that when the contract was reduced to writing the description of the lot was copied from his deed, and he was asked if that included the timber he h„ad shown, and he replied that it did. It further appears from their evidence that when they had cut and peeled nearly two thirds of the timber which they supposed they purchased, they were Notified that the balance of it was not on their vendor’s lot; that they informed him of this, and he assured, them that the lines were where he had represented them to be, and that they hadmot yet; cut and peeled more than half th'e timber on his lqfcr® A subsequent survey,, however, ■ demonstrated thididlie^Kitice they had received was substantially correct.

In answer to this evidence, the vendor says that he did not point out the lines and corners of his lot, and that he did not know where they were; that the written contract must govern, and, as the vendees have received all the timber described in that, their defence fails. It does not appear that the vendees ever saw this lot or any map or description of it, before the day of the sale, but the vendor received his deed for it sixteen months before, and he says that he was upon the lot twice with Thomas Lynch to search for the lines, and that they could not find them. The learned judge instructed the jury that the case turned on the good faith of the vendor in making the sale, that his honest mistake in pointing out the lines, or a mutual mistake of the parties respecting their location, would not constitute a defence to the note. In this we think he erred/ The vendor sold the timber he pointed out, and one third of it he had no title to. The mistake was material and the sale was founded upon it. If it was an honest mistake, the vendor cannot gain nor his vendees lose by it. It was said by Chief Justice Gibson in Tyson v. Passmore, 2 Pa. 122, that “ he who would avail himself of his own misrepresentation, even where it was unintentional, is as much open to an imputation of fraud as if its falsity had been known to him.” ^

A contract; entered into in a mutual mistake as to an essential fact which formed the inducement to it, may be rescinded on discovery of the mistake, if the parties can be placed in their former position with reference to the subject matter of it. But if this is not possible by reason of something done under the contract before the mistake was discovered, the injured party may have compensation in damages, as an equitable defence to an action on the contract, or to be recovered in a suit for them.

There is no evidence to justify an inference that the parties to this sale had equal opportunities of knowing the boundaries of the lot. The vendor owned it more than a year before he sold the timber, and his deed contained a description from which its lines could have been readily located by a surveyor. The vendees first saw this description when they met to put the contract in writing, and he then assured them that it included the timber he had pointedtiut. We think the evidence is sufficient to authorize a finding in accordance with the claim of the vendees. It is true that the only persons on the lot, on the day of the sale, who testify to what was said and done there then, are the vendor and J. A. Samson, one of the vendees. Hammond who was with them is dead. It is impossible to reconcile the testimony of these witnesses. But the declarations of the vendor, as testified to by a number of persons, contradict him and corroborate the statement of Samson. Then, there are the inherent probabilities of the transaction, viewed in the light of the undisputed facts, to assist in the interpretation of the direct testimony.

If Hammond, acting for the vendor and in his presence, made false representations respecting the boundaries, whether honestly or with fraudulent intent, the latter is as much affected by them as if made by himself. But, in either case, the representations are not available as a ground of defence or claim, unless they relate to a material fact and were an inducement to the purchase.

To the extent that the instructions complained of are in conflict with this opinion the specifications are sustained.

The judgment is reversed, and a venire facias de novo is awarded.