The complaint contained two counts — one for fraud in the sale to the plaintiff by defendant's intestate, Jacob Goedel, of 100 shares of the stock of the Richmond Coal Company, and the other for fraud in the sale to the plaintiff, by the same party, of an interest in the Cumberland Saltpeter Company. The fraud was denied in the answer. Upon the trial the plaintiff gave evidence under both counts. At the close of his evidence defendant moved to dismiss the *Page 394 complaint, as to the second cause of action, on the ground that there was no proof to support it, and the court granted the motion. The defendant therefore gave no evidence as to that cause of action. But plaintiff's counsel, when he came to the summing up to the jury, proceeded to discuss the evidence introduced by him under the second count, claiming from it that Goedel had committed the fraud on the plaintiff alleged therein, and that such fraud was contemporaneous with the transfer to the plaintiff of the stock in the coal company, and tended to show the fraudulent intent of Goedel in making the transfer of the last-named stock. Thereupon defendant's counsel objected to plaintiff's counsel making such use, or any use, of the evidence relating to the second count, upon the ground that plaintiff had been nonsuited as to that count, and that the defendant had had no opportunity to meet the evidence given under it with counter-evidence. The court overruled the objection, and defendant's counsel excepted. Defendant's counsel then offered to prove that, in the matter of the transfer to plaintiff of the saltpeter interest alleged in the second count, Goedel committed no fraud, and made no misrepresentations. The court excluded the evidence, and defendant's counsel excepted. After the summing up, the counsel for plaintiff, among other things, asked the court to charge the jury "that, upon the question of intent with which the representations as to the Richmond Coal Company stock were made, the jury have a right to take into account the evidence as to the representations made as to the Cumberland Saltpeter Company interest, which the defendant proposed to sell to the plaintiff at about the same time, and the evidence as to their truth or falsity." The judge charged the jury, among other things, substantially, as thus requested, and defendant's counsel excepted to this portion of the charge. The rulings of the learned judge who held the circuit worked manifest injustice to the defendant, and may justly be complained of as erroneous. In the first place, he held that there was no evidence tending to prove the fraud alleged in the second count of the complaint; and, as to the cause of action *Page 395 contained in that count, dismissed the complaint. The defendant could not therefore, with propriety, give any evidence as to that cause of action. The ruling of the judge put an end to the litigation as to it. He then permitted plaintiff's counsel to sum up the evidence given as to that cause of action, and claim to the jury that he had given evidence, as to it, tending to prove the fraud alleged in reference to it, and that such fraud, being contemporaneous with the fraud alleged in the first count, could be taken into consideration by the jury in judging of the fraud alleged therein. Not only this: he denied the request of the defendant to give evidence in rebuttal of plaintiff's evidence in reference to the second cause of action.
Having ruled that there was no evidence tending to prove the fraud charged in the second count, he should not have permitted the counsel to claim to the jury that there was any. If there was no evidence of fraud sufficient to carry the case to the jury upon the second count, then there was no evidence of fraud for any purpose. I cannot understand how there could be evidence of fraud, under the second count, sufficient to corroborate the evidence of fraud given under the first count, and yet not sufficient to carry the case to the jury as to the second count.
It was not necessary, as has been claimed, for the defendant to move to strike out the evidence given under the second count because the judge had ruled that it did not tend to prove fraud, and hence was of no consequence. Therefore, I think the defendant had the legal right to confine the summing up to the evidence given under the first count. If, however, the judge at that stage of the case changed his mind, and came to the conclusion that there was some evidence for the consideration of the jury, tending to prove the fraud alleged in the second count, he should at least have given permission to the defendant to rebut the evidence. This permission he refused. But it still remained with the judge to protect the rights of the defendant in his charge to the jury. He should have been consistent throughout, and *Page 396 should have charged the jury that there was no evidence for their consideration as to the fraud alleged in the second count. But, instead of this, he charged the jury that they might consider any evidence which the plaintiff had given, tending to prove fraud under the second count, upon the question of the fraud alleged to have been committed in the first count. I cannot doubt that, under the circumstances of the case, this charge was erroneous.
The judgment should be reversed and new trial granted, costs to abide event.