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"Q. There was a check issued for two The contention which we

now hundred dollars about the roth of Janu-called upon to decide is not any criticism ary, 1922? A. Yes, sir.

cf the charge of the court in submitting "Q. To whom was it issued? A. John the facts, for the learned counsel for Yetter.”

plaintiffs, in the brief which they filed In answer to cross-examination by Mr. for the inspection and guidance of the Viles, the witness said that check was

court, say :

"There was a general exused to reduce the $1500 note at the City ception to the learned court's charge Bank down to $1 300.

taken at the close thereof, with leave to H. S. Weikel

, called on sur-rebuttal, specify when the notes should have been under objection by plaintiff's counsel, transcribd and filed. the court allowed Mr. Niles to ask the

"A careful examination of the court's following worded question (see stenog charge, outside of the refusal of the rapher's transcript, pages 47-48): "State plaintiff's points refused, discloses no whether or not, in October of 1921, ground for criticism. Messrs. Schweitzer and Schlough, these

"But we contend that the court did err plaintiffs, stated at Ephrata, in the pres- seriously in not affirming all the plainence of this witness and Isaac Fink, that uifis' points and in affirming the defendthey had just returned from York, hav-ant's first and only point. ing gone there with a certified check for

The plaintiffs' first point was, in ef$1500 of the Ctility Feed Vachine lect, a conclusion based upon only a part Company to pay the note of Yetter, at of the whole testimony, consequently the City Bank of York, which the Util- could not have been justly affirmed. 11 ity Feed Machines company had prom the evidence in the case pertinent to the ised to pay, and that they had succeeded issue tended to show the contention of in getting Mr. Yetter to put his name to the defendant; that is, that the note was a new note upon their promise to relieve executed by the defendant because of him from all liabiltiy and endorse the the parol agreement that, as between the note, and that they had thereby saved the plaintiffs and defendant, he, defendant, $1500, and exhibited the check which ivould not be called upon to pay them, they had taken over, in the presence of the plaintiffs. If that defense was bethis witness and Mr. Fink." “A. I can lieved to be true by the jury, then the practically corroborate that."

proper “Q). (By the Court). The question is, was an accommodation maker of the

inference was that the defendant did those men say just what that ques-note, and no consideration was due from tion stated? 1. lbsolutely, they got the him to the payees. check."

"The total or partial want or failure Mr. Isaac Fink, on page 49, testified of consideration,

* in sur-rebuttal, and corroborated the sisted upon as a defense, or a bar beabove testimony of Wr. Weikel, given in tween any of the immediate or original sur-rebuttal.

parties to a contract." "An accommoThese excerpts from the testimony dation bill or note is one to which the proved that the plaintiffs did not imme- accommodating party has put his name, diately pass any consideration to the de- without consideration, for the purpose of fendant for the note which they, the accommodating some other party who is plaintiffs, are trying to collect from the to use it and is expected to pay it.

Bedefendant, and rendered plausible the tween the accommodating and the accontention of the defendant that the note commodated parties, the consideration in question was being used in violation may be shown to be wanting": Real v. of the alleged agreement which induced Iddicks, 174 la. 543. its execution, and created such an issue It must be kept in mind that the suit of fact as would require the determina- at bar is between the original parties on tion by a jury.

the note. The payees are suing the payAccordingly, the facts were left to the er for recovery of the consideration jury, which decided them in favor of the mentioned in the note, when their own defendant.

(the plaintiffs') testimony shows that no

may be in

money or other consideration passed duced by a contemporaneous parol promfrom either one of the parties to the ise and the possessor is attempting to other.

use it in violation of such promise. In The refusal of the plaintiffs' second thelholt v. Hughes, 204 Pa. 156. Mr. point, which refusal the plaintiffs assign Justice Fell states the principle that, “It as an error of the trial court, was be- is always competent for the defendant, cause the point assumed that there was

who is sued upon a written contract, to no clear, precise and indubitable evi-prove that he was induced to enter it by dence. In the present case, the trial reason of fraudulent representations by judge could not say to the jury that the the plaintiff of material facts going to evidence was not clear, precise and indu- the consideration, on the faith of which bitable. There was more evidence per- is not to alter or vary the terms of a

he acted. The purpose of such testimony tinent to the issue than the mere unstip-written contract by párol, but to show a ported evidence of the defendant. The plaintiff's evidence was conclusive that,

failure of consideration, which in equity

entitles the defendant relief in whole at the time the note was executed and delivered to them, the defendant did not or in part from the written obligation.” owe them. It was also testified that two

Anything that would entitle the dehundred dollars had been paid to the defendant, in an action on a specialty, to fendant, either by plaintiffs or some relief in a court of equity, will be a good obligor other than defendant, and there defense in a court of law. was other evidence given, denied and dis The defense in this case involves all puted, that the plaintiffs had been fur- these general principles, and we think nished with money to settle the note with the evidence offered both by the plainthe City Bank. Clearly, all that evidence tiffs, together with that of the defendpertaining to the real issue was for the ant, should be determined by a jury upon jury to pass upon.

such facts as they evolve from the evi"Where admittedly the whole of an

dence, and the inferences which they

draw therefrom. agreement is not in writing, either party my produce parol or written evidence

It is true that the unsupported evias to the matter thus resting in parol.” dence of the defendant would not be “In a suit upon a written instrument, sufficient to sustain the defense in this one party thereto may defend upon the case, but it was clear from the evidence ground that he was induced to sign it by of the plaintiffs that no definite consida promise which the other made and, in eration passed between them, and that at the suit, now attempts to repudiate." the time the note was executed and de“In such case, it need not be averred or livered to plaintiffs, the defendant did proved that the inducing promise was not owe the plaintiffs anything. That omitted from the writing by fraud, ac- was the precise effect of the combined cident or mistake": Kerr v. McClure, evidence of defendant and both plain266 Pa. 103.

"Where admittedly the tiffs. Nothing could be more certain writing does not fully express the agree from all the evidence than those facts. ment of the parties in regard to the mat The voluntary evidence of each of the ter under consideration, the same strict- plaintiffs in rebuttal, and the evidence of ness of pleading and proof are not re- the witness, H. S. Weikel, corroborating quired”: Federl Sales Co. v. Farrell, 264 the defendant, and the evidence of Isaac Pa. 149. Quoting from "Pennsylvania Fink in sur-rbeuttal, furnished sufficient Trial Evidence,” by Henry, page 221, Ipertinent evidence upon which a jury sections 359 and 360, “There are two alone should deduce the facts and draw general classes of cases, where parol ev- the inferences. That was not for the idence is admissible to contradict or vary i court to do, as the plaintiffs' first, second a writing; first, where there was fraud, and third points required. accident, or mistake in the execution of The distinction between the cases cited the instrument itself; and second, where by the very learned counsel for plaintiffs the execution of the instrument was in- 'in support of their position, and the law

C. P. of

as

applicable to the evidence required in the motion for judgment non obstante verecase at bar, cannot be more clearly stated victo is refused. Judgment my be enthan has been done by former Chief Jus-ered on the verdict. tice Brown in the case of Gaudy V. Weckerly, 220 Pa. 285, 290, 291.

Lancaster Co. In the case of Miller v. Fry, 57 Pa. New Holland Borough v. Ranck, Supr. Ct. 473, Mr. Justice Trexler, in reversing this court, said (see page 477):

owner, etc. "This was an action of assumpsit by the payee against the maker of a promissory note. The court below entered judgment Practice - Municipal lien - Counterfor want of a sufficient affidavit of de- claim for damages in trespass-When fense. We think the defendant was entitled to go to trial. The affidavit is not counter-claim will not be stricken offas clear and precise as we might wish, Acts of May 4, 1915, and May 28, 1915. but we cannot say it is so faulty as not to disclose a valid defense: After spe On scire facias on a municipal lien for the

cost of laying a pavement, the defendant may cifically denying the material facts con

set off a claim for damages sustained by reatained in the statement, it alleges that the son of the acts of the plaintiff's agents and plaintiff and defendant, desiring in com- employees in laying the same pavement.

This is not an action of assumpsit, but a mon to borrow the sum of $1,000 for the statutory proceeding under the Act of May benefit of J. W. Bittinger, jointly ob-14, 1915, P. L. 312; and section 14 of the tained said sum from the Industrial Na-Practice Act of May 14, 1915, P. L. 483, pro

viding that only claims recoverable in tional Bank of West York and paid it sumpsit can be set off in an action of asover for the benefit of Bittinger; the sumpsit does not apply.

In such case, the application to strike off note being signed by the defendant to the defendant's counter-claim should be made the order of the plaintiff, and that he, promptly and before the filing of the reply

thereto, the defendant, received no part of the proceeds of the note.

Sci. fa. sur municipal lien. Rule to "As between the parties to this suit, strike off defendant's counter-claim. Disthe affidavit is an averment of no consid-charged. eration, and an absence of any contrac

M. G. Schaeffer, for rule. tual relation excepting such as would arise by reason of their joint liability, John 1. Coyle, contra. and that the payee warranted the payment of the debt by Bittinger,

Hassler, J., Jan. 19, 1924.-On Oct. 4. "The learned judge below held that 1921, the plaintiff filed a municipal claim this was attempting to contradict or, vary longing to the defendant, in the Borough

in this court against a house and lot bethe terms of a written instrument by pa- of New Holland, for the cost of laying a rol evidence, without proof or allegation of fraud or mistake, and that such de-i pavement in front of it, together with 20 parture from the terms of the written in- per cent. penalty and 5 per cent. attorney strument must be shown by, evidence filing of such claim is authorized by the

fee, amounting in all to $519.99. The clear, precise and indubitable. In this weAct of May 14, 1915, P. L. 312, and its think he was in error.”

supplements. This sci. fa. was issued A close examination of the case at bar upon that municipal claim. The plaintiff with all the evidence adduced at the trial. Gled a statement and the defendant filed convinces us that the questions raised by an affidavit of defence, and subsequently the pleadings and proof at the trial were she, on Nov. 27, 1922, filed a supplemenproperly left for the jury to decide, and tal affidavit of defence, in which she sets no good reason has been shown to war- forth as a set-off to plaintiff's claim a rant this court in setting the verdict claim of $612, which she alleges is due aside,

her because of damages sustained by reaAnd now, September 29th, 1924: The son of the acts of plaintiff's agents and rule for new trial is dismissed, and the employees in laying the pavement for

which it seeks to recover in this action.cided that a counter-claim in trespass for It is conceded that the amount so claimed damages arising out of the negligent as a set-off can only be recovered, if at manner in which the work of laying the all, in an action of trespass. On Dec. 22, pavement was done is good, as it is a 1922, the plaintiff filed a reply to this well-recognized rule that the defendant claim of set-off, and on Nov. 21, 1923, owes the plaintiff nothing because of nearly a year after filing the reply, it pre-some tort committed by the plaintiff sented a petition to this court to strike off against the defendant in connection with defendant's claim of set-off.

the plaintiff's cause of action. The purThis application to strike off defend-pose of this rule, it is stated, is to avoid ant's set-off is based, as stated in the mo-circuity of action. tion, on two reasons, as follows: 1. That the action on the part of the

In Bindley v. Pittsburgh, 64 Pa. Superplaintiff is an action in assumpsit, and

ior Ct. 371, which was an action on a matters set off by way of counter-claim municipal claim filed for improvements, against the claim of the plaintiff, the it is said: "It may be said generally, as whole amount being $612, are for 'dam- to liens of this kind assigned by the muages arising in trespass.

nicipality, any defence arising directly 2. Plaintiff avers that the defendant from the subject matter of the improvehas no right to set off the amount of this ment will be allowed. Thus, in assigned counter-claim against the claim of the claims, damages for the careless or unBorough of New Holland in the above

skillful manner in which the public imcase.

provements are constructed may be set This application should have been off : Charlton v. Allegheny City. i Grant, made promptly and before a reply was 208; Philadelphia, to use, v. Bilyeu, 47 filed to defendant's claim of set-off by Pa. Superior Ct. 148.” the plaintiff, but as the defendant does In Charlton v. Allegheny City, i Grant, not object to this delay, we will not re-208, cited in the proceeding quotation, fuse the motion on that account. the action was a sci. fa. upon a munici

It is true, as contended by the plain-pal lien for grading and paving a certain tiff's attorney, that the Practice Act of street. The defendant filed an affidavit May 14, 1915, P. L. 483, in section 14, of defence, in which it alleges as a counprovides that only such rights or claims ter-claim that it had sustained damages as are recoverable in an action of as- / by the act of the plaintiff in grading ansumpsit may be set off as a counter-claim other street. Justice Lowry, in deliverby a defendant in an action of assump-ing the opinion of the Supreme Court, sit against him. This, however, is not said: "In an action for work and labor an action of assumpsit, but a statutory done, the defendant may defalcate for proceeding, authorized, as the claim itself any damages which he may have sufferstates, by the Act of May 14, 1915. Prac-ed by reason of the careless or unskillful tice in this case, therefore, is not govern- manner in which the work was done, but ed by the Practice Act of 1915, and any he cannot set off the damages which the claim may be set off as a counter-claim plaintiff may have done to him in anby the defendant that could have been other or independent transaction." so used before the passage of the act. In her affidavit of defence the defendCases are numerous that, in order to ant alleges that the damages which she avoid circuity of action, damages that are claims as a counter-claim were sustained only recoverable in an action of trespass through the laying of the pavement for can be set off against such claim as plain which the municipal lien was filed. Her tiff seeks to recover in this case. , claim, therefore, arises out of the same

In McLaughlin v. Reineman, 69 Pitts. transaction that the plaintiff's does, and L. J. 426, the plaintiff sued to recover we are satisfied from the authorities cited the contract price for laying a sidewalk. that it is a proper subject of set-off to The defendant offered as a counter-claim plaintiff's claim. We, therefore, disthe expense of replacing a plate-glass charge the rule to strike off the counterwindow that was negligently broken by claim contained in defendant's affidavit those who laid the pavement. It is de- of lefence. Rule discharged.

tate.

C. P. of

Allegheny Co.ed to Gustave Kaufman, who had transAmerican Trust Co. v. Kaufman

ferred it to hinder and defraud his creditors. Though the proceedings was contested, judgment for plaintiff was enter

ed, and on appeal, affirmed. See AmeriPleading and practice-Equity-Eject-can Trust Company v. Kaufman, 276 Pa.

35. 11 ent Title to real estate Foreign

Gustave Kaufman died in the City of judgment-LienCreditor's bill.

New York on February 15, 1923, apparEjectment is not an exclusive remedy to ently insolvent. Subsequently, on Februtest the validity of a conveyance made to ary 27, 1923, plaintiff filed its bill in hinder, delay or defraud creditors but equity equity praying: (a) That the deed to ered in a foreign jurisdiction and the credi- Sidonia S. Kaufman, be declared fraudutor's bill did not pray for a restraining order lent and void and the same be vacated but that the suit be indexed on the judg: and annulled; (b) That the land in the ment docket, as it involved title to real es

In no other way could purchasers or deed be declared subject to the indebtedmortgagors be notified, and a judgment cred; ness of Gustave Kaufman, as determined itor, whose judgment was not a lien, had a right to invoke the aid of a court of equity. by the judgment; (c) That the lands or

interest in the lands be sold by a trustee Demurrer. Overruled.

and the proceeds of said sale applied to

the payment of the indebtedness; (d) W’m. J. Barton, for plaintiff.

That a receiver be appointed; (e) That Wm. Kaufman, for defendant.

the suit be indexed in the name of the

defendant as a lien lis pendens against Before Ford and Kline, JJ.

the real estate; (f) General relief. Ford, J., May 21, 1927.—This is a de

In support of the demurrer, defendmurrer to a bill of complaint filed by ant contends that plaintiff has a full, the American Trust Company. From

law; the bill, the following facts appear: Gus- that the consideration of one dollar retave Kaufman became indebted to the

, American Trust Company and on Octo-selves and the records thereof, wherein it ber 22, 1920, the plaintiff recovered a judgment in the Supreme Court of New appears that on each deed revenue York against him, Gustave Kaufman, in stamps to the value of $8.00 were affixed a large amount. The action was

and cancelled, thus indicating a considernotes and during the negotiations be-ation of at least $8,000.00. tween plaintiff and Gustave Kaufman Mrs. Kaufman lives in New York, and for an extension and further financing, on filing of the bill, service was ordered but prior to the beginning of the action as provided by the Act of April 6, 1859, in the Supreme Court, Gustave Kaufman P. L. 387. An appearance de bene esse and his wife by deed dated April 8, 1920, was entered on her behalf, and a motion conveyed an individed interest in the made to dismiss. In effect, the same property described in the bill of com- questions raised by the motion to dismiss plaint to one Alfred Sanborn, and, on the are urged in support of the demurrer. following day, April 9, 1920, Alfred San- In disposing of the motion, after citing born, conveyed the property to Sidonia the facts, in an opinion filed, Carpenter, S. Kaufman, the wife of Gustave Kauf- J., said: man. Both deeds were duly recorded on "It is now too well settled to require April 12, 1920. In each deed the recited citation of authorities, that where it is consideration is one dollar and other alleged a sale was made to hinder, delay good and sufficient considerations. Being or defraud creditors the proper method unable to find assets in the State of New of testing the validity of the conveyance York, where all parties resided, plaintiff is by judicial sale at the suit of a creditor, caused a writ of foreign attachment to and action of ejectment. See Kemmler be issued in Allegheny County, averring: v. McGovern, 238 Pa., 460, and cases the land supposedly sold, in fact belong-, there cited, and, many others to the same

on

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