Max Meadows Land & Improvement Co. v. Mendinhall , 4 Pa. Super. 398 ( 1897 )

Opinion by

Rice, P. J.,

Great liberality is always exercised in the admission of evidence having a tendency to show fraud, and in determining whether the allegation is established, the united force of the items of testimony having this tendency is to be considered: Montgomery Web Co. v. Dienelt, 133 Pa. 585. So where the fraud consists in false representations in which matters of fact and matters of opinion are so ingeniously joined as to made the whole deceptive and misleading, they are to be considered as a whole. If any one material representation relied on was false, equity will relieve, although such representation may not have been the sole inducing cause of the contract: Sutton v. Morgan, 158 Pa. 204-213. By taking up each of the alleged false representations separately, and giving it a literal interpretation, and not considering what was the effect, and intended to be the effect, of the representations taken as a whole, a very plausible argument can be made to show that the literal falsity of some of the representations is not sufficiently alleged, and that others were statements of mere matters of opinion. But even according to this method the plaintiff’s counsel are not wholly successful in showing that this is true of all of them. For example, one of the alleged representations was that the plaintiff “ had secured the services of a competent manager, having a large acquaintance among manufacturers of the north, who would make it his special business to induce new industries to locate at the said place.” The affidavit denies that the plaintiff ever “ secured the services of a competent manager who made it his special business to induce new industries to locate at the said place.”' We are asked to brush aside these allegations, as of no account, because the defendant does not allege that the plaintiff had not secured the services of a manager whom they believed to be competent. Upon an appeal from an order refusing judgment we ought not to act upon the assumption that the plaintiffs had engaged a manager, whom they believed to be competent, or that they had engaged any manager. The defendant alleges that the representation, as made, was untrue in a material part,' and that it was fraudulently made.

Again it is alleged that the plaintiffs “ falsely and fraudulently represented that the following industries had agreed to locate at said place : rolling mill and horseshoe works, a planing mill, sash, door and blind factory, and that negotiations were in progress and would probably be concluded within the next few weeks after the said October 25, for a machine shop, foundry, boiler and engine works.” This was a representation of existing facts within the knowledge of the plaintiff, and not a statement of mere matters of opinion or conjecture; it was made for the purpose of inducing the defendant to buy lots and to give his notes therefor, and it is alleged that it was believed by him and was one of the inducements. . Is it sufficiently averred that it was false and fraudulent ? If the representation had been that certain persons, naming them, had agreed to locate industries at the place, a bare allegation that the representation was falsely and fraudulently made might not be sufficient. Where an allegation of fraud is relied on in an affidavit of defense the facts constituting the fraud should be fully set forth. And in the case supposed, the defendant would he expected to aver specifically that the persons named had not agreed to locate industries there. But owing to the indefiniteness of the representations in this particular the most that could be reasonably expected of an honest defendant would he that he should aver that the representation was false and fraudulent and that the industries mentioned never were located there. If this is not sufficient to entitle him to have the truth and bona fides of these representations submitted to a jury, then no more successful method of deceiving and defrauding by false representations can be devised than by so adroitly wording them as to make it impossible for the person deceived to prove their falsity except by inference. If the plaintiff made these representations in good faith, believing them to be true they will have an opportunity of showing it before a jury.

It may be said that the defendant ought not to have relied on the representations without inquiring as to what persons had agreed to locate industries at the place, and with whom negotiations for the location of other industries were being made. On this point it has been well said : “ However negligent the party may have been to whom the incorrect statement has been made, yet that is a matter affording no ground of defense to the other. No man can complain that another has relied too implicitly on the truth of what he himself stated:” Kerr on Fraud and Mistake, 81; Sutton v. Morgan, 158 Pa. 204; Braunschweiger v. Waits, 179 Pa. 47.

It is urged that the affidavit is defective because a copy of the prospectus is not attached. We do not mean to relax the rule upon the subject of setting forth copies of papers referred to in affidavits of defense. But the rule is to have a reasonable application, and it would be unreasonable to hold, without qualification, that all the newspaper advertisements, hand bills and printed prospectuses must be set forth in heec verba. Besides that, the affidavit alleges that the false representations were made by the officers and agents of the company, as well as in the advertisements. This would be sufficient to sustain the affidavit without reference to the printed matter referred to.

It seems both unnecessary and unadvisable to further discuss the merits of the case in advance of the trial; for it is to be borne in mind that it comes before us at this time on appeal from an order discharging the rule for judgment for want of a sufficient affidavit of defense. The act allowing appeals from such interlocutory orders was intended to reach only clear cases of error in law, and thus to prevent the delay of a trial. Numerous cases might be cited in support of this proposition, but I shall refer to only a few. “In doubtful cases and especially in those requiring broad inquiry into facts, where the court refuses judgment the matter in controversy should go to the jury as the proper tribunal to decide the cause under proper instructions from the court: ” Griffith v. Sitgreaves, 81* Pa. 378; Radcliffe v. Herbst, 135 Pa. 568. “It requires a clear case to induce us to reverse the court below under such circumstances, for the reason that a refusal to enter judgment sends the case to the jury, where the rights of the parties can be properly disposed of: ” Murphy v. Cappeau, 147 Pa. 45. “ We do not mean to interfere where rules for judgment have been discharged in the lower courts in doubtful cases, but only in such as are very clear and free of doubt, as we have frequently said: ” Ensign v. Kindred, 163 Pa. 638. “ It must be a very plain case of error in law, if we sustain appeals in such cases as this, from the decree of the common pleas discharging the rule. The decree being interlocutory, no injury can result to the complaining suitor other than delay of final judgment: ” Ætna Ins. Co. v. Confer, 158 Pa. 598.

Tested by the rule laid down and followed by the Supreme Court in these and other cases, the appeal should be dismissed, thus leaving the question as to the truth, the hona fides and the materiality of the alleged representations to be determined after the facts are fully developed on the trial, and the law of Virginia has been duly proved. See Musser v. Stauffer, 178 Pa. 99.

The appeal is dismissed at the costs of the appellant but without prejudice, etc.