Campbell v. Walker, 5 Vesey, 678. In the present case, the bill was not filed until six years, lacking one day, after the sale of the interests. Complainant had equal means with respondents of ascertaining the value of the business, and if he did not avail himself of them he cannot avoid the contract on the ground of want of knowledge. Farnum v. Brooks, 9 Fick. 234. Eichelberger v. Barnitz, 1 Yeates, 307. sale of the Union Furnace; and that the deeds executed to Thomas Beaver may be declared fraudulent and void as an absolute conveyance. The master found against the plaintiffs upon the question of fraud, and dismissed their bills. The Court below sustained the finding of the master, and dismissed the exceptions. An appeal to this Court was entered by the plaintiffs in each case. In Geddes' Appeal there are six assignments of error, which will be considered in their order. The first, second, and third assignments are to the finding of the facts by the master. I have examined the voluminous testimony in the case with great care, and am unable to say that the In order to set aside an executed sale, there master's finding of the facts is not fully sustained. must be clear evidence of fraud. Caldwell v. Boyd, 7 Sm. 325. Davidson v. Little, 10 H. 251. Rockafellow v. Baker, 5 Wr. 321. The master has found against the allegations of fraud, and his report is entitled to great weight. Phillips' Appeal, 18 Sm. 130. This If, as stated in the first assignment, the testimony May 8. THE COURT. The appellant and Joseph W. Shriner, the appellant in Shriner's Appeal, argued with this case, were part owners of the Union Furnace. The said furnace was erected in 1853, and from that time down to the first of April, 1864, was operated and owned by firms of which Geddes and Shriner were members. The second assignment refers to a number of On the first of April, 1864, a sale was made by distinct questions of fact, the most important of Geddes and Shriner of their interest in said fur- which are the concealment from the plaintiffs nace to Thomas Beaver for the sum of $25,775.51. that Thomas Beaver purchased for the defendants, Shriner was paid $2000 extra, so that the whole partners in the firm with plaintiffs; and that amount of the purchase money was $27,775.51. plaintiff's interest in the furnace was purchased Six years, lacking a few days, after this sale Ged- for several thousand dollars less than it was des and Shriner respectively filed their bills in worth. In regard to the first, it is sufficient to equity against their late co-partners, alleging, in- say that the master in his report upon the excepter alia, that they had discovered since said sales tions finds the facts to be that it was concealed that said furnace was in a prosperous condition from the plaintiff that Beaver was buying for the on the first day of April, 1864, and making large other partners. Of this finding the plaintiff canprofits; that it had made before that time about not complain. It is in his favor for whatever it $100,000, the amount originally invested, which is worth. The second ground of objection is not was profit; that the real estate and fixtures had sustained by the evidence. The other matters regreatly enhanced in value, all of which was un-ferred to in this assignment are of minor imknown to and concealed from them. They also alleged that Thomas Beaver did not purchase for himself, but for the defendants, James S. Marsh, Peter Beaver, and Levi Rooke, which fact was unknown to said Geddes and Shriner at the time, and was studiously concealed from them; that they were led to believe, by the assertions of their co-partners, or some of them, that no profits had been realized or money made by the firm, and that the furnace was not worth the original investment and interest. They therefore prayed relief, the object of the bills being respectively to set aside the contract between the said Geddes and Shriner and Thomas Beaver, relative to the portance. It was no fraud upon Geddes that Shriner received $2000, or any other sum more than he did, provided he (Geddes) received the value of his interest. A man has no legal right to complain that another has received a higher price for property of similar value. The third assignment alleges error in ruling that the interposition of Thomas Beaver to purchase for defendants was not in itself such an undue concealment as avoided the transaction at the option of the complainants. It is not too much to say that very much of the atmosphere of fraud which has been ingeniously thrown around this case is due to the circumstances of this ad 1 mitted concealment of the fact that Thomas Bea- | tiff had tried to sell to Peter Beaver, but without ver was not buying for himself, but for the other success. There is no class of real property more partners of the firm. That such concealment was difficult to dispose of than an undivided interest not a fraud, per se, as is assumed in this assign-in an iron furnace. The iron business is one in ment of error, is easily demonstrated. Of what which fortunes are sometimes made rapidly and importance was it to the plaintiff who the pur-as suddenly disappear. It is eminently precarious, chaser was, provided he obtained his price, or the value of his interest? It is a very common thing in real estate, and perhaps other transactions, for the purchaser to conceal his name from the vendor, and to negotiate through or in the name of another party. The reasons for this are obvious, and such course of dealing has never been held to be fraudulent. It is true there might be a case in which such concealment might be some evidence of fraud. But it would only be so in its relation to other facts, as to which it formed a connecting link in a chain of evidence to establish a fraud where a fraud in fact had been committed. In this case we have the fact in proof that the relations between the plaintiff and his partners were not of the most amicable kind. This circumstance may have induced the latter to conceal their real purpose. It is said that if the plaintiff had known who the actual purchasers were, it would have put him on his guard, and perhaps induced him to demand a higher price for his interest. This, if true, raises no equity. The argument, to be worth anything, must go to the extent of supposing that the plaintiff would have used the information for the purpose of exacting a greater price than his interest was worth. For, if he got its value, how was he injured? It is possible the defendants had this in view in withholding the information from him. They had a right to buy upon as good terms as they could, provided they did no wrong to the plaintiff. It is difficult to see why the fact that Thomas Beaver desired to purchase the plaintiff's interest was not equally as significant as a purchase direct by the defendants. Mr. Beaver had only gone out of the firm the year before. He had sold out at a heavy sacrifice; he was reputed to be a wealthy and shrewd iron-master. That such a person desired to come back into the firm would seem quite as suggestive of rising values as that the other partners desired to buy. subject to frequent and violent fluctuations. At the close of ten years of dull times, the plaintiff had on hand as unsalable a species of property as could be found in the State. Yet at the time he sold the tide had turned. He knew this, and was advised not to sell, but very naturally reasoned that if he did not do so when the business was improving he could not sell at all. In 1863 the firm made some money, so that on January 1, 1864, there was a balance in favor of the furnace of $12,000. Up to April 1, 1864, there was made the further sum of $16,499.67. On that day the value of the Geddes and Shriner interests, as found by the master, was $33,833.37. This included interest, which had never been earned on the investment. The amount paid for these interests was $27,785. We cannot say that this was an inadequate price. We have no reason to suppose that any one else would have given more; there is no evidence that any other purchaser could have been obtained who would have given as much. That the business was prosperous, enabling the parties to make large profits and to pay for the shares out of the profit, is not to the purpose. We are not to judge this transaction by the light of subsequent events. It was con summated in the face of an uncertain future. The ebb and flow of the business tide in that future was concealed from human vision. Had the de fendants been stranded amid its breakers, this bill probably would not have been filed. Given an adequate consideration, and this whole theory of fraud in this case crumbles. It is unnecessary to go over the allegations of concealment and misrepresentation in detail. In this absence of inadequacy of consideration they are not especially significant. Much importance was attached, however, to the letter of Levi Rooke of February 11, 1864, inasmuch as it is alleged that it grossly misrepresented the value of the property, and induced the plaintiff to sell. It is sufficient to say The fourth assignment raises the really impor- in regard to it that it does not profess to be full tant question in this cause. Was there such a and accurate. It refers to the sickness of the fraud in this transaction as would avoid the sale? bookkeeper, and his consequent inability to make Here the burden of the proof is upon the plaintiff. He alleges fraud, and must prove it. And the proof must be clear and satisfactory to induce a Court of Equity, after the expiration of nearly six years, to avoid a contract deliberately made, and which has been fully executed. This furnace was established in 1853. It had made no money prior to 1863. During that year Thomas Beaver sold out his interest at a sacrifice of about one half. Some years before, the plain out a balance sheet. It closes with a request to Mr. Geddes to come down and see for himself as soon as the bookkeeper got better. Surely if Mr. Geddes was deceived by this letter, it was his own fault. He was selling his own property; he had the fullest access to the books. Those books were his books; they belonged to the firm of which he was a member. No one ever denied him access to them, and it is not even alleged that they contain any false entries. It is not to the purpose that he did not understand them. Common Pleas-Law. Nov. 4. thereof. He cannot charge any one else with the Practice- Execution-Errors and appeals— consequences, whatever they may be of his own neglect. The remark of Mr. Justice WOODWARD, in Rockafellow v. Baker (5 Wright, 319), is applicable here.* But there is neither fraud nor inistake in the legal sense of the terms, when the buyer of an article which he finds in market has a full opportunity to examine it, and when the means of information relative to facts and circumstances affecting the value of the commodity are equally accessible to both parties. It is to be remembered that the parties are not before us upon a bill seeking specific performance. The contract was fully executed several years ago. We are now asked to undo all this and remit the parties to their position before the sale. A Court of Equity should move with cautious and reluctant steps on such a path as this, for it is a very narrow one. "Nothing but fraud or palpable mistake is ground for rescinding an executed contract." (5 Wright, 319; Graham v. Pancoast, 6 Casey, 97; Nace v. Boyer, Id. 109.) Mistake is not alleged. The plaintiff has shown no such clear fraud as would justify us at this late day in disturbing this transaction. Decree affirmed, with costs to be paid by appellant, and appeal dismissed. Opinion by PAXSON, J. WILLIAMS, J., absent. Act of 16 June, 1836, § 8, Purd. Dig. 605, pl. 17. Mc Donald v. Gifford, 6 Phila. Rep. 315. 1 Tr. & H. Pr. 688, and note (5). Storage Co. v. Kaiser, 1 WEEKLY NOTES, 20. Owens, for the rule, argued that until the rule to open judgment was disposed of, on October 14, the judgment was not finally entered; and as the writ of error was taken within twenty-one days from that date, the case is within the spirit if not the letter of the Act. McDonald v. Gifford, 6 Phila. Rep. 315. The objection that the writ of error will not the defendant should not now be concluded by a lie can only be considered in the Appellate Court; technical construction of the proviso limiting the view of the fact (stated by counsel) that the rule time for taking a writ of error, particularly in of defendant's counsel in New York. to open judgment was discharged in the absence Rule discharged. set forth: (1) that plaintiffs are not the owners | C. P. No. 2. Gerson v. Binder. should be filed in person. Nov. 18. of said notes, but hold them simply for the pur- Married woman-Pleading-Plea of coverture poses of this action, and that they have been transferred to them to avoid the defence which the defendant might have made in a suit by the original payees. (2) That deponent holds notes of Wm. McKnight & Sons, the original payees, to an amount greater than the notes in suit. (3) That the copy filed is, inter alia, of a note of J. C. McCurdy to the order of this deponent for $750.00, at three months from August 17, 1876, and that this deponent never made any such note. Stutzbach, for the rule. As to the second point in the affidavit the defendant should have sworn how and when he came into possession of the notes he claims as a set-off. Spears v. Sterrett, 5 Cas. 192. [THE COURT. This is no doubt the law when the case comes for trial, but when a man swears Rule to strike off pleas, and enter judgment. defendant, by attorney, pleaded "coverture," and Assumpsit on a promissory note, to which the other pleas, in bar. The plaintiff then took this rule to strike off the pleas. Lynd, for the rule (with whom was R. L. Ashhurst). Coverture is a dilatory plea, and should be pleaded in abatement within four days. Even if the plea had been in time, it must be filed by defendant in person. A married woman cannot appear by attorney. Keddeslin v. Meyer, 2 Miles, 295. Shakespear, contra. THE COURT. Coverture is not necessarily a in an affidavit of defence that he is the owner of plea in abatement merely. As to the filing by notes, the law presumes he is so bona fide.] The variation set forth in the third point of the affidavit is a clerical error, and plaintiff may amend. Linnard v. Booz, 1 Weekly NOTES, 82. attorney, it was an inadvertence. Leave given to defendant to withdraw plea filed by attorney and plead in propria persona. [THE COURT. Such an amendment would C. P. No. 2. change the cause of action.] The defendant should take a rule for the pro duction of the original. Kelly v. Livingston, 1 WEEKLY NOTES, 95. Shaw v. Baildon, 1 Tr. & H. Pr. 383. Rule discharged. Νον. 4. C. P. No. 2. Stover v. Hotel Co. Affidavit of defence-Set-off-Damages by negligent performance of duties by plaintiff. Rule for judgment for want of a sufficient affi davit of defence. Assumpsit on a due bill given by defendants to plaintiff for services as manager of the Hotel Aubrey. The affidavit set forth "that plaintiff by his neglect and reckless management had entailed losses on the defendants to an amount larger than his claim." It then went on to charge specific losses of $9000 in the dining room, about $2000 in servants' wages, and about $1200 in servants' food; the number of servants being much larger in the months of May and June than in August after plaintiff had left, though the number of guests in the latter month was much larger than in either of the former months. Daniels, for the rule, cited, as to unliquidated set-off Lehmaier v. Bo`n, 1 WEEKLY NOTES, 441. Pettit, contra. Rule discharged. [Cf. Callahan v. Mann, 1 WEEKLY NOTES, 104; Watson v. Galloway, Id. 107; Biswanger v. Stocker, 2 Id. 407.] Nov. 18. Snyder v. Kohler. Mechanic's lien-Plea of "no lien" bad. Rule to strike off pleas. Sci. fa. sur mechanic's lien. Pleas: No lien; non assumpsit; set off; payment with leave, etc. The plaintiff then took this rule to strike off the pleas of "no lien" and "non assumpsit." Maloney (with whom was Erdman), for the rule, cited Lee v. Burke, 16 Sm. 336. Calloway, contra. Rule absolute, as to the plea of "no lien." C. P. No. 2. Nov. 18. England et al. v. Kelly. Abatement of actions-Death of defendant after service and before judgment-Execution set aside and judgment opened—Practice. Rule to set aside fi. fa. and open judgment. This was an action of debt, in which there was service of the writ and judgment for want of an affidavit of defence. A fi. fa. was then issued and returned "mortuus est." Depositions were read, showing that the defendant died after the service of the writ and before judgment. Peirce, for the rule. Rule absolute. [See Hagarty v. Thompson, 1 WEEKLY NOTES, 576.] Nov. 4. C. P. No. 3. Kennedy v. Bozarth. C. P. No. 3. Ohman v. Winsmore. Rule for judgment for want of a sufficient affidavit of defence. Nov. 11. Mechanic's lien law-Omission in claim of owner's name, and of dates when materials were furnished and work done-Striking off defective claim-Practice. Rule to strike off mechanic's lien. The claim was filed against "Joseph S. Bozarth, contractor," without naming the owner or reputed owner, for materials furnished and Assumpsit for a loan of money. The plaintiff work done "within six month last past," but the filed an affidavit of loan, under the Act of March dates were not mentioned either in the claim or 11, 1836, § 14 (Purd. Dig. 496, pl. 16). The in the bill of particulars. The only reference in affidavit of defence set forth that at the time of the claim to the work done was "Work and gas making such loan, the defendant gave plaintiff fitting. for and about the erection," etc, his promissory note, to plaintiff's order, for the and, in the bill of particulars, "and fitting job full amount thereof; and suggested that the complete," no sum being specified therefor. The plaintiff's affidavit of loan was insufficient in that bill of particulars contained a list of materials it omitted all mention of said note, and thereby furnished, without specifying the prices, and confailed to set forth fully "the terms of said loan" cluded, “To amount of estimate, $148.75." as required by the Act; further, that the plaintiff P. K. Erdman, for the rule. cannot, while holding a note for the indebtedness, Rule absolute. proceed under the Act of 1836, supra. J. A. Scanlan showed cause. The Act of 1836 was intended to apply only to parol contracts for the loan of money, not evidenced by any instrument of writing on which the plaintiff might take judgment under the affidavit of defence law of 28 March, 1835 (Purd. Dig. 495, pl. 13), to which the Act of 1836 is a supplement. The provisions of the latter Act must be strictly com. plied with, and the plaintiff's affidavit is defective in that it conceals a material part of the terms of the contract, to wit, the giving of the note. If this action were sustained, the defendant might be compelled to pay the indebtedness a second time to a bona fide holder of the note. Geo. P. Rich, for the rule. The Act of 1836 applies, by its terms, "to contracts for the loan or advance of money, whether the same be reduced to writing or not.” The contract here is admitted to have been one of loan, and the note was taken as collateral security to the defendant's personal liability on the contract. In such case the plaintiff may sue either on the original contract or on the note. [As to what particularity is required in stating dates, etc., in a mechanic's claim, see Martin v. Jack, 2 WEEKLY NOTES, 232; McNeill v. O'Neill, Id. 530; Aman v. Brady, Id. 262; Tack v. Brady, Id. 426; Williams Green. Brown, Id. 434.] v. Carson, 1 Id. 107; Vandyke v. Carson, Id. 107; C. P. No. 4. Conrad v. Rodgers. Oct. 14. Affidavit of defence-Allegation that defendant Assumpsit on a book account. Upon a previous rule for judgment for want of a sufficient affidavit of defence, the Court ordered a supplemental affidavit to be filed. This not having been doneL. C. Massey now moved for judgment. [ELCOCK, J. The question is now upon the sufficiency of the original affidavit.] The affidavit set forth that defendant never out-ordered or purchased the goods mentioned in the copy filed, and owes nothing by reason of such alleged purchase by him; that if the same were ordered by any other person in his name, he has no knowledge thereof, and he has no personal knowledge of any such goods having been obtained for him or for his use. Hays v. McClurg, 4 Watts, 452. The affidavit does not aver that the note is standing in the hands of a bona fide holder. THE COURT. The Act of March 11, 1836, applies only to loans or advances of money not evidenced by any instrument of writing under which judgment could be taken by filing a copy under the affidavit of defence law. Massey, for the rule, contended that the affidavit was evasive. The mere denial of personal knowledge is no defence; he may have had an authorized agent, and such fact is suggested by the peculiar wording of the affidavit, the copy filed making no allusion to the subject of an agency. |