Verbach v. Davis

3 Walker 176

• Court: Supreme Court of Pennsylvania
• Decided: July 15, 1883
• Docket: No. 16
• Status: Published

Opinion

The Supreme Court, reversed the judgment of the Common Pleas on October 1st, 1883, in the following opiuiou, per

Green, J.:

It may be that the testimony offered by the defendant and rejected by the Court would not have affected the result if it had been received. But we eanuot know that, and it seems to’ us it ought to have been received. Of course, if the torpedo that actually was exploded in the well was so small in bulk and so inefficient in force as to produce no effect whatever upon the rock at the place of explosion, the fact of the explosion would be an immaterial circumstance as affecting the value of the well. We understand this to have been the character of the proof offered. Some testimony of this sort did get into the case, but it did not go so far as the rejected offers. It is true that the marketable value of the 'property sold, rather than its real value, may have been in the contemplation of the purchasers if they were regarding only its speculative uses. But they were the owners of the land, desirous of getting rid of the lease, and the sale included in addition to the well all the machinery used in carrying it on, and also the leasehold which had a number of years to run. The written assignment made no mention of the well at all, and described only the leasehold, and expressed the whole consideration of $700 as being paid for that. In view of these facts, it seems to us that when the plaintiffs sought to get back the whole, or nearly the whole, of the purchase money paid upon an allegation that they were deceived by a representation that the well had been torpedoed, it was competent for the defendant to show that the torpedoing which was done was of such a character as not to affect the well at all, or constitute any test of its possible productiveness. Some of the witnesses in reply to the general question as to the difference in market value of a well, if it had been torpedoed or not, said that they could not answer without knowing what kind of a torpedo had been used, and that if it was a small one it would make little or no difference. If this was the case ’ with witnesses, examined as.experts, it might well be the case with a jury. We think a jury charged with the determination of such a question ought to have the benefit of all the facts which attended the transaction. We are of opininon that all the rejected offers of testimony should have been allowed, and the assignments of error are therefore all sustained.

Judgment reversed and venire tie novo awarded.