delivered the opinion of the court, February 6th 1882.
It was not error to overrule the defendant’s motion for leave to file the special plea. If, in an equity proceeding, the plaintiff testified to the facts set forth in the plea, the defendant was not misled or injured thereby so that the plaintiff is now estopped from asserting the truth. That testimony, embodied in a plea, would be no bar to this action. Under the general issue the defendant had the right to prove the facts as set out in the plea, if he could, but the evidence need not appear on the record.
The remark of the court which is made the sixth specification of error, — namely, “ But right here is the pivotal point of the case: Was the sale of the share to Mr. Stuard effected by *300means of false representations, false in fact and made fraudulently, or willfully and recklessly by Mr. Davis to Mr. Stuard ?” —could not have misled the jury, even if this question was not the pivotal point. It was first in order before any other proof could be considered, and, unless the jury affirmed it, the plaintiff had no right of áctiou. Until this was established, it would have been idle to inquire whether the plaintiff rescinded the. contract and gave the defendant notice of the rescission, promptly or otherwise. The right of Stuard to rescind rested upon the fraud of Davis in luring him into the purchase.
We think the instructions to the jury were correct and properly applied to the evidence. The testimony in support of the plaintiff’s case was of such weight as to .require its submission.
What was said in the answers to points respecting the rescission of the contract and a tender back of the interest purchased, was pertinent and just. Stuard testified that he paid the money in April 1865, and Davis promised to give him a certificate for the share of stock; that from time to time Davis sent him to divers places for the certificate, and on going to them he found no certificate or person to give it; that at last he was sent to the old Ledger building, where he found no secretary or certificate, and at once went to Davis and demanded his money, which Davis refused to give. This was within three months of the time of the purchase, and had it not been disputed, the court should have charged that Stuard had received nothing to return, and that the contract was rescinded in a reasonable time. At a later stage in the trial, Stuard said that he never heard of the alleged declaration of trust till in October or November 1875 ; and if this was true, a tender of the re-conveyance then was sufficient, although the suit was pending. What is a reasonable time or undue delay, when the facts are not disputed, is a question of law to be determined by the court: Morgan v. McKee, 77 Pa. St. 228. When the facts are in dispute, the question necessarily goes to the jury, and if a party wishes specific instructions respecting reasonable time or undue delay, he may secure them by putting proper points. Here no instructions were asked, and nothing was said to mislead.
But one other point seems to require remark. The defendant offered the summons for the purpose of showing when the action was commenced, and urn are of opinion that the offer was admissible. Upon the questions of fraud and prompt rescission the testimony was conflicting. Delay for six years to bring suit would bear against the plaintiff, unless he explained it; while, if the suit was promptly commenced upon discovery of the fraud, it would corroborate his allegation of immediate rescission. In such cases it has been the practice, if the date of bringing suit is not admitted, to show it by producing the writ. *301It is an item of evidence which a party has the right to have considered. The proof of the alleged fraud and rescission may be so strong, or so weak, that the jury would give no weight to the date of suit in arriving at their conclusion; but the court may not determine this. "'The fourth specification of error is sustained.
Judgment reversed, and venire facias de novo awarded.