degree. In Deemer v. Weaver, 324 Pa. 85, 88, 187 A. 215, 216 (1936), it is stated: 'If by any act of concealment or deceit, whether before or at the same time or after the act is committed, the wrongdoer hides from the innocent party the facts which would put him upon inquiry, the statute does not begin to run'.
We shall not attempt to review the Pennsylvania decisions. The task was ably performed by Judge (now Chief Judge) Biggs in his dissenting opinion in Overfield v. Pennroad Corporation, 146 F.2d 889 (3d Cir. 1944). We quite agree with Judge Biggs' view respecting the trend of the Pennsylvania cases (146 F.2d p. 928,):
'The majority hold that if there was concealment by the defendants such concealment must be 'an affirmative, independent act,' citing inter alia Smith v. Blachley, 198 Pa. 173, 47 A. 985, 53 L.R.A. 849; Bailey v. Jacobs, supra (325 P.a 187, 189 A. 320), and Ebbert v. Plymouth Oil Co., supra (338 Pa. 272, 13 A.2d 42). The 'independent act' in the majority view must constitute 'affirmative efforts to divert, mislead, or prevent discovery,' citing Deemer v. Weaver, 324 Pa. 85, 88, 187 A. 215, 216. I agree with the majority that the Pennsylvania decisions frequently refer to the necessity of 'affirmative, independent act of concealment' over and above the original wrongful act complained of but I must dissent from the majority view as to what constitutes a correct interpretation of the Pennsylvania decisions. The Supreme Court of Pennsylvania though employing the language quoted above has mitigated the strictness of the announced rule by declaring rather slight instances of further concealment as sufficient to toll the running of the statutes of limitations here involved.'
With respect to plaintiff's claim founded on his purchase of the violin, the case is clear. Even applying the Smith v. Blachley rule in undiluted form, defendant's act of insuring the violin as a Stradivarius worth $ 15,000 -- in 1946, two years after the sale -- was a separate, 'affirmative effort to divert or mislead or prevent discovery' which effectually tolled the statute. Other of defendant's acts and statements, as found above, only serve to strengthen the conclusion.
We think plaintiff's other claims are barred by the statute. As respects the cello, defendant's two statements, which may have tended to divert or mislead or prevent discovery, were made after the expiration of the period of limitations. It is true that the evidence discloses that defendant made certain statements to plaintiff's wife and daughter, but whatever efficacy these statements might otherwise have had, there is nothing to show that they were communicated to plaintiff, and plaintiff's wife and daughter were not parties to the contract. We find no acts or statements by defendant, at any time subsequent to the sale, which would toll the statute in respect of the claim founded on plaintiff's purchase of the violin bows.
Certain of the Pennsylvania cases contain expressions to the general effect that in cases of fraud, the statute of limitations runs only from discovery of the fraud, or from the time when, with reasonable diligence, there ought to have been discovery. We do not understand this rule as superseding the rule laid down in Smith v. Blachley and succeeding cases, but rather as supplementary thereto. We think the question, when, with reasonable diligence, there ought to have been discovery of the fraud, must be determined in light of the relation and circumstances of the parties. We have factually defined the relationship between plaintiff and defendant, as established by the credible evidence. It is unnecessary for present purposes to decide whether or not it constituted a 'confidential relationship', as defined in the Pennsylvania cases. Drob v. Jaffe, 351 Pa. 297, 41 A.2d 407 (1925); Hamberg v. Barsky, 355 Pa. 462, 50 A.2d 345 (1947). In our view, the relationship between plaintiff and defendant, close and intimate as it was, explains and excuses plaintiff's failure sooner to discover defendant's fraud and deceit.
Plaintiff claims that he is entitled to 'recission of the transaction' and to refund of the money paid. The evidence fails to show that plaintiff ever offered to rescind the contract and to restore the status quo. See, 8 P.L.E. Contracts § 251 et seq. His remedy, therefore, is limited to damages. The measure of damages in this action is the plaintiff's actual loss, which is measured by the difference between what he paid out and the actual value, at the time of the purchase, of what he received. Peters v. Stroudsburg Trust Co., 348 Pa. 451, 35 A.2d 341 (1944).
CONCLUSIONS OF LAW
1. The Court has jurisdiction of the parties and of the subject matter.
2. The law of Pennsylvania applies to the transactions between plaintiff and defendant.
3. The contract of sale and purchase of the violin was induced by defendant's fraud and deceit.
4. Plaintiff's claim for damages arising from his purchase of the violin is not barred by the Statute of Limitations.
5. Plaintiff is entitled to recover damages from defendant in the sum of $ 10,900.
6. The contract of sale and purchase of the cello was induced by defendant's fraud and deceit.
7. Plaintiff's claim for damages arising from his purchase of the cello is barred by the Statute of Limitations.
8. The contract of sale and purchase of the violin bows was induced by defendant's fraud and deceit.
9. Plaintiff's claim for damages arising from his purchase of the violin bows is barred by the Statute of Limitations.
10. Defendant's counterclaim against plaintiff for the balance due on the contract for the restoration of the Harper cello was extinguished by an accord and satisfaction.
11. Plaintiff is entitled to judgment on defendant's counterclaim.
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