
    *Harris v. Magee.
    [Thursday, November 10, 1803.]
    Equity Practice — Answer—Setting Aside — Case at Bar. —If the answer denies imposition, and is supported by the report of the Commissioner and the acknowledgments of the plaintiff that the debt is just, it will not be set aside by loose conversation.
    Contracts. — A contract will not be suspended, until a tort is tried.
    Order of Reference — Settlement of Accounts. — In an order of reference to the Commissioner to take an account between the parties, all accounts between them ought to be settled.
    
      Harris brought a suit in Chancery to be relieved against a contract with Magee for the purchase of 3001. worth of merchandize; which the bill states Magee was to furnish from Philadelphia, at the lowest rate they could be purchased at, from the wholesale dealers there, and Harris was to give him Virginia currency for Pennsylvania money, equal to advance of 25 per cent. ; the money to be paid in three months, and to be secured by deed of trust. The bill charged that the goods were over-priced, and that the plaintiff, who is illiterate and cannot read, had been , imposed upon. The answer denies the imposition; and states, that the plaintiff solicited the defendant to furnish him with goods; that he purchased them in Philadelphia, and shewed the real invoice to the plaintiff, who took such as he liked only, at agreed prices. The Court of Chancery referred the account between the parties to a Commission, who reported, that the prices charged were agreeable to the invoice. There are several depositions taken relative to the terms of the contract, and the prices of the goods. The Court of Chancery dismissed the bill; and Harris appealed to this Court.
    Wickham, for. the appellant.
    The contract between Harris and Magee ought to be set aside upon the ground of fraud. Harris was illiterate and forced into the execution of the agreement. The latter states the contract perhaps truly; but, it contains other assertions which are disproved by the record; and threats are held out in it in order to intimidate him. The prices of the goods are so enormous as to carry internal evidence of fraud. Coarse woolens are charged at 150 per cent., although 87J<¡, or 100 percent., at the highest, is the most ever given for them. Mere inadequacy of *price may not be sufficient, of itself, to avoid the contract, but inadequacy, combined with other circumstances will. Heathcote v. Paignon et al., 2 Bro. C. C. 174. The real agreement was for the invoice price, and a reasonable advance for the purchase; but, this was departed from, and he was threatened, by the letter, in order to procure a' compliance. A great part of the goods were old, and there were a good many remnants. It is, in principle, like the case of Broddus v. M’Call, in this Court. [Post, 546.] The answer is disproved by Richardson and Harris; but, independent of that, its credit is destroyed by the conduct of the defendant. Harris was interested, and privy to a fraud : therefore his testimony is of no weight. It does not appear that the invoice is genuine, except from the answer; for, it is not signed by the merchants, who sold the goods. The contract ought to be set aside, and the value only given. Magee prevented Harris from selling the cattle, whereby he sustained an injury, which ought to be compensated; and, for that purpose, an issue ought to be directed. Upon the whole, the fraud is not only apparent from the circumstances, but the contract carries internal evidence of the deception along with it.
    Randolph, contra.
    The plaintiff executed a deed, which closed the whole transactions; and was a deliberate act, not subject to any reasonable exception; for, there is nothing which proves that anjr fraud was used in order to obtain it. Most of the allegations of the answer are responsive to those in the bill; and, therefore, they must be disproved according to the usual course, or the general rule of evidence, relative to the weight of an answer, must prevail. Besides, they are supported by the statements in the report of the Commissioner. There is no proof of fraud; and the plaintiff must prove it, before he pretends to draw any relief from that source. Mere ignorance, if it exists, is no ground of relief, unless there is proof that advantage has been taken of it. The threats *spoken of, are nothing more than a mere demand of justice, which certainly is no ground of objection. There is no internal evidence of fraud. The advance upon the invoice is not unreasonable; for, calculation will shew, that 100 per cent, was given by Magee; and, therefore, the compensation which he demands, considering the risque and expense of transportation, is not extravagant. The supposed inadequacy has no influence. The case of Heathcote v. Paignon, does not apply against the defendant; for, no over-reaching or fraudulent conduct was used there: much less any distress or force. No exception to the old goods was taken in the bill, or any other proceedings in the Court of Chancery, nor is any testimony taken in order to disprove the invoice. There is no evidence that Harris was interested; nor that he was privy to a fraud; for, no fraud is proved; and, consequently, there is no ground for exception to the weight and credit of his testimony. The idea of the issue is wholly untenable; for, Magee had a right to interpose and forbid the sale. Exceptions, not taken in the Chancerj^, as to matters of fact, ought not to be allowed to be taken here; because, it tends to surprise the adversary party. The decree, therefore, is right in all its parts, and ought to be affirmed.
    Wickham, in reply.
    The plaintiff could not read; and, therefore, shewing him the invoice was useless, and proves nothing in favour of the defendant, even were the fact itself established. The Commissioner’s report is not testimony, any further than it is supported by the proofs in the cause; and, therefore, the argument drawn from that source, is not sustainable. The advance of ISO per cent, was altogether unconscionable; it ought to have been the usual advance, which would have been 25 per cent, only, as the Philadelphia wholesale dealers buy of the manufacturers instead of the merchant ; and, therefore, can sell them at an advance of Virginia currency for Pennsylvania currency. The invoice prices were actually excepted to in *the Court of Chancery; and, therefore, according to the opposite counsel’s own argument, he ought to have proved them.
    Cur. adv. vult.
    
      
      See monographic note on “Contracts" appended to Enders v. Board of Public Works, 1 Gratt, 364.
    
   LYONS, Judge.

The first objection to the decree is’, that no deduction is made from the price of the goods; which, it is alleged, ought to have been done, as the plaintiff was imposed upon, and the goods were over-priced. But, both charges are expressly denied by the answer; which is supported by the report, and the acknowledgments of the plaintiff that the debt was just;. against which, the plaintiff has nothing to oppose, except loose conversations, and conjectures; which certainly cannot outweigh the united force of the defendant’s testimony.

The next objection is, that no allowance is made for the injury done the appellant, by Magee’s forbidding the sale of his estate; which is certainly a novel idea: for, if there had been any ground for the supposed injury, when was it ever heard that the execution .of a contract was to be suspended, until an issue relative to a tort could be tried, so that the damages might be opposed as a discount against the debt? Upon this ground, the Court discover no error.

But, for another reason, they are of opinion, that the decree is erroneous; namely, that although there were several paj’ments, and some misapplications of credits, and the order of reference to the Commissioner embraces all accounts between the parties, yet the Commissioner has only settled the accounts relative to the deed of trust; whereas he ought, agreeably to the order of reference, to have settled all accounts between them, so that the injunction might have been dissolved, as to the true balance only. Upon this ground, therefore, the decree is to be reversed, and a direction *given that a settlement of all their accounts should be made by the Commissioner.

The decree was as follows.

1 'This day came as well the appellant as the appellee, John Magee, by their counsel, and on consideration of the transcript of the record of the said decree, and the arguments of the counsel afofesaid; it appearing by the report of the Master Commissioner made in this cause, that payments had been made by the appellant to the ap-pellee, John Magee, towards discharging the 'debt due to the said appellee; for the securing whereof, the deed of trust in the proceedings mentioned, was made to the other appellees, Thomas Hatton and Micajah Crew; and it also appearing by the receipts and other evidence in the cause, that further and other payments had been made to the appellee, John Magee, which are not credited in the account so stated by the Master Commissioner: This Court is of opinion, that all accounts between the parties shall be fully' stated and settled by the Master Commissioner before a final decree: That then the injunction should be dissolved for the balance only, that shall appear on such settlement to be due to the appellee, Magee, from the appellant, with interest until paid, and the injunction to be made perpetual, as to the residue; and that the costs in the Court of Chancery be borne equally by the parties, Harris and Magee.' Therefore, it is decreed and ordered, that the decree aforesaid be reversed and annulled, and that the ap-pellee, John Magee, pay to the appellant his costs by him expended, in the prosecution of his appeal aforesaid here.”  