
    Supreme Court of Pennsylvania. EASTERN DISTRICT.
    LAUBACH v. LAUBACH.
    The measure of damages in an action by a purchaser who has, under the agreement of sale, tendered back the stock and demanded the return of the money, is the amount paid and not the market price at the time of the refusal or breach.
    Error to the Court of Common Pleas of Labigh. County.
   Opinion delivered March 27, 1873, by

Sharswood, J.

The first assignment of error is intended to raise the question; whether the instruction of the learned judge below -to the jury, as to the measure of damages, was correct. There was no dispute as to the amount which the plaintiff had paid for the stock, nor that he had made a regular and formal tender of it back to the defendant, and demanded the return of the money, or a note, in conformity with the agreement. The plaintiff in error supposes that the same rule is applicable in this case as in the ordinary case of the refusal of a vendee, before any title to the property has passed to him, to accept goods which he had previously agreed to buy: The authorities which have been cited abundantly show that the measure of damages is the difference between the contract and the market price at the time of the refusal or breach. But the mistake is in considering that this was a contract to purchase or re-purchase. If the jury believed the testimony of the plaintiff, and that was left to them, and upon his credibility the whole controversy hinged, then it was an agreement by which, as one of the terms of the sale, the plaintiff was to be at liberty to rescind the contract, and the defendant undertook in that event to pay back the price or give his note for the amount. It is like the very common case of the purchase of a horse, where the buyer pays the price, but stipulates that after a reasonable trial, if he should not be satisfied with the animal, he may return him and receive back the price paid. No one has ever supposed that this was to be construed as a contract to repurchase, or that upon the exercise by the vendee of the option reserved, the title does not revest in the original vendor, and the right to the price in the vendee. This is the legal effect of the rescission of a contract, whether the rescission be by reason of an inherent vice, such as fraud, or by virtue of the contract itself. Smethurst v. Woolston, 5 W. & S. 106.

The nine following assignments all relate to one and the same question. The plaintiff had testified that the defendant stated to him as an inducement to the purchase, that he had reserved twenty thousand shares of the stock of the company in dispute, for the Laubach family, from which the inference was, that he was the .agent of the company for the sale of the stock. When the defendant was put upon the stand as a witness, for himself he denied that the he had made this statement, and that he had ever said anything to certain persons named about selling stock to them. This was certainly relevant to the issue trying, and the defendant might be contradicted in regard to it, for it bore direct upon the main question, whether he or his son Frank had made the sale to the plaintiff. It was true that this was entirely collateral and irrelevant, and his answer conclusive according to the familiar rule, that a witness cannot be contradicted as to collateral and irrelevant -matter brought out upon cross-examination. It is, however, unnecessary to decide this, because the offer to contradict him in this respect by the testimony of the persons, who had been named to him, was made in connection with an offer to contradict him as to the other relevant matter that he had not spoken to them about the sale of the stock. The objection to the offer was a general one, and if any part of it was admissible, the judge cannot be convicted of error in overruling such general objection. In such a case it is the duty of the party objecting, to call the attention of the judge particularly to that part which is inadmissible by a special objection. This is but fairness to the judge. In the pressure upon his mind in the necessary hurry of a jury trial, he cannot be required to scrutinize narrowly every part of an offer, and to distinguish in it the admissible from the inadmissible, though he may do so; and especially is this true, when the objection goes merely to relevancy, the shades of difference as to which are often so slight. The learned judge below, in his charge, instructed the jury that the fact that the defendant had guaranteed and' promised to redeem stock which he had sold to others, was not a circumstance from which they were at liberty to infer or find that he had made a like promise to the plaintiff. We think, therefore, that there was no error in the admission of this evidence, of which the defendant below, the plaintiff in error, has any right to complain.

C. M. Hunk, Esq., for plaintiff; Edward Harvey, Esq.,. and Hon. John D. Stiles, for defendant.

As to the eleventh assignment, it is enough to say, that we have not been furnished with copies of the books and circulars of the company, so as to enable us to judge of their competency and relevancy. If the defendant was the agent of the company in making the sale of the stock, of which there was some evidence, these books and circulars may well have been admissible if their contents were relevant. Indeed,, this assignment does not seem to be pressed, as the counsel for the plaintiff in error did not notice or explain it, either in his printed or oral argument.

Judgment affirmed.  