Stetson v. Croskey , 52 Pa. 230 ( 1866 )

The opinion of the court was delivered, May 15th 1866, by

Strong, J.

The general rule is, that a plaintiff cannot claim as a right to give as evidence in rebuttal that which he might have given in chief. To this there are doubtless several exceptions not easily susceptible of classification. Most of them, however, are allowed in cases where the defence set up is some new matter, not directly but only inferentially conflicting with the averments of the plaintiff. Such a defence and the evidence to support it may not be anticipated, and hence a plaintiff is allowed to assail it by rebutting evidence, though that evidence may have been admissible in chief. In the case now before us the evidence offered by the plaintiffs and rejected by the court does not appear to come within any recognised exception to the general rule. The plaintiffs sued for false and fraudulent representations in the sale of a vessel. It was incumbent upon them in the outset to prove both the fraud and the extent of the injury resulting from it. Assuming the fraud to have been proved, the damages recoverable were to be measured by the difference between the value of the vessel as she was represented to be and her value as she really was.. There was no other standard. What it would cost to repair the vessel and put a new bottom upon her (the evidence submitted at first to show the amount of damages), was pertinent only because it tended to prove the difference in value between the vessel as she was, and what her value would have been if the representation of the plaintiff had been true. It is plain, therefore, that the evidence given by the defendants to show the value of the vessel as she was, and what her value would have been had she been sound, was a direct answer to the plaintiffs’ ease. It was meeting what the plaintiffs were bound to prove, and what they had attempted. It had reference exclusively to the amount of damages recoverable, if any. It had nothing to do with the averment of fraud — with the question whether false representations had been made. If the purchasers obtained a good bargain, they were entitled to the benefit of it, and that benefit cannot be set off against their claim that the sellers shall make good their false assertions. So if the purchasers made a bad bargain, their loss cannot swell the damages recoverable for fraud. Looking, then, at the evidence submitted by the defendants as bearing upon the measure of damages, the evidence of the plaintiffs offered in rebuttal was but cumulative proof of the precise thing which they were bound to establish as a part of their case, and which they had attempted to establish by their evidence in chief. It was not an answer to a new and unexpected defence, only inferentially conflicting with their allegations. Hence it was not error in the court to refuse its admission.

Judgment affirmed.

Thompson and Agnew, JJ., dissented.