Thompson v. Chambers

Opinion by

Beaver, J.,

Plaintiff purchased furniture from the defendants, upon the alleged representation by defendants that they knew the materials with which it was upholstered, and that this accounted for the price which was larger than that of other furniture which seemed to the plaintiff of equal quality. Plaintiff paid the price, took the furniture and later discovered that it was not what was represented. After an unsatisfactory effort to adjust the difficulty, he re-shipped the furniture to the defendants, notifying them of the fact. The plaintiff had a legal right to rescind the contract. “ An executed contract may be rescinded for the fraudulent representations of a party or his agent whereby it was induced; and to assert for truth what one professes to know and may fairly be supposed to know, but does not know to be true, is equivalent to the assertion of a known falsehood and may be so treated in determining the right <of the other party to rescind the contract.” 3 P. & L. Dig. of Dec. 4481; Pl. 1921-1925. The plaintiff seems to have "lost mo time in re-shipping the property after the discovery of the inferior character of the goods. He brought his suit before an alderman in assumpsit and claimed money paid for the furniture returned, $75.00, and damages and expenses, $25.00, which were allowed. Defendants claim that this was in effect an action of deceit and that, inasmuch as the alderman had no jurisdiction of such an action, the plaintiff could not recover in this case, which was an appeal from his judgment. The action, it is true, was based upon the alleged misrepresentation of the defendants, but it was an action of assumpsit which, in view of the rescission of the contract, was the proper remedy; the claim was for the money paid for the property, which was proper in an action of assumpsit. It is true that damages and expenses were claimed by the plaintiff and allowed by the alderman, but they were not allowed in the final judgment, and the mere fact that such claim and allowance were made did not change the character of the action. After appeal the plaintiff was allowed on the first trial of the case to amend his declaration or, in fact, to substitute a new declaration for the one previously filed. Both “the original and amended declarations were in assumpsit, the former being upon a warranty and the latter for the recovery of the amount paid for the goods by reason of the rescission of the contract. In Smith v. Bellows, 77 Pa. 441, the original suit was in assumpsit. The plaintiff was afterwards permitted to declare in tort for deceit. It was held there that the amendment; was properly allowed, because the cause of action was the same. So in Wilhelm’s Appeal, 79 Pa. 120. “The limit of the power of amendment always has been and still is that no new cause of action can be introduced and engrafted upon the original declaration.” Whether plaintiff claimed upon the warranty contained in the original contract of sale or by virtue of his rescission of the contract, the substantial ground of recovery was the same and rested upon the original contract. We can see no error in the allowance of the amendment. This disposes of the first, second, fifth, sixth, eighth and eleventh specifications of error.

The portions of the charge of the court below assigned for error contained nothing of which the defendants had any reasonable right to complain. The gravamen of these assignments of error is that a misrepresentation as to a material fact about which the defendants knew nothing, at the same time alleging that they had knowledge of the fact, which afterwards proved to be untrue, was equal to their having knowingly misrepresented. We cannot regard this as error. As was said by the President Judge of this court in Lake v. Weber, 6 Pa. Superior Ct. 42, “ A misrepresentation which possibly might not be sufficient to ground an action for damages may be sufficient to entitle the party deceived to rescind the contract or to defeat or defend pro tanto an action upon it. It is perfectly safe to say, however, that so far as the right of the promissor to defend the action is concerned, it is immaterial whether the other party knew that the representation was false or made it without any knowledge upon the subject. In either case the law as well as the common rules of fair dealing forbids that he should make a misrepresentation for the purpose of deceiving, which does deceive and profit thereby to the other’s injury. There are cases, and this is one, where to assert for truth what one professes to know and may fairly be supposed to know, but does not know to be so, is equivalent to the assertion of a known falsehood and may be so treated in determining the right of the other party to rescind the contract or, if the falsity of the declaration be discovered too late for that, to defend an action upon it.” See cases there cited. The court below, it seemto us, went no farther than this, and to hold the contrary would be destructive of all fair dealing. It is true that “ A party seeking to rescind a contract must take back what he has received under it and do all in his power to place the parties on the footing they occupied previous to contract, but such tender must be made with the intention and for the purpose of rescinding the contract, and what has been received under the contract must be tendered back in as good condition as it could have been kept with all reasonable care.” 8 P. & L. Dig. of Dec. 4499; Pl. 1971-79. All this the plaintiff seems to have done, and was, therefore, in a position to recover back what he had parted with, which, with interest, was what- was allowed in this case. On a consideration of the whole case we cannot see that any error was committed, and the judgment is, therefore, affirmed.