Графични страници
PDF файл
ePub

"Q. There was a check issued for two hundred dollars about the 10th of January, 1922? A. Yes, sir.

"Q. To whom was it issued? A. John Yetter."

In answer to cross-examination by Mr. Niles, the witness said that check was used to reduce the $1500 note at the City

Bank down to $1300.

The contention which we are now called upon to decide is not any criticism of the charge of the court in submitting the facts, for the learned counsel for plaintiffs, in the brief which they filed for the inspection and guidance of the court, say: "There was a general exception to the learned court's charge

taken at the close thereof, with leave to

specify when the notes should have been transcribd and filed.

"A careful examination of the court's charge, outside of the refusal of the plaintiff's points refused, discloses no ground for criticism.

"But we contend that the court did err

H. S. Weikel, called on sur-rebuttal, under objection by plaintiff's counsel, the court allowed Mr. Niles to ask the following worded question (see stenog rapher's transcript, pages 47-48): "State whether or not, in October of 1921, Messrs. Schweitzer and Schlough, these plaintiffs, stated at Ephrata, in the pres- seriously in not affirming all the plainence of this witness and Isaac Fink, that tiffs' 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 Utility Feed Machines fect, 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. All 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 would 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." "Q. (By the Court). The question is, was an accommodation maker of the proper inference was that the defendant did those men say just what that ques-note, and no consideration was due from tion stated? A. Absolutely, they got the him to the payees. check."

Mr. Isaac Fink, on page 49, testified in sur-rebuttal, and corroborated the above testimony of Mr. Weikel, given in

sur-rebuttal.

"The total or partial want or failure of consideration, * * * may be insisted upon as a defense, or a bar between any of the immediate or original parties to a contract." "An accommoThese excerpts from the testimony dation bill or note is one to which the proved that the plaintiff's 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. defendant, and rendered plausible the contention of the defendant that the note in question was being used in violation of the alleged agreement which induced 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.

Accordingly, the facts were left to the jury, which decided them in favor of the defendant.

tween the accommodating and the accommodated parties, the consideration may be shown to be wanting": Real v. Addicks, 174 Pa. 543.

the note. The payees are suing the payer for recovery of the consideration mentioned in the note, when their own (the plaintiffs') testimony shows that no

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 use it in violation of such promise." In

other.

The refusal of the plaintiffs' second Athelholt v. Hughes, 209 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 he acted. The purpose of such testimony written contract by parol, but to show a is not to alter or vary the terms of a failure of consideration, which in equity

bitable. There was more evidence

per

tinent to the issue than the mere unsupported evidence of the defendant. The plaintiff's evidence was conclusive that, at the time the note was executed and entitles the defendant to relief in whole 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 relief in a court of equity, will be a good obligor other than defendant, and there] defense in a court of law.

some

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 jury to pass upon.

ant, should be determined by a jury upon such facts as they evolve from the evidence, and the inferences which they draw therefrom.

"Where admittedly the whole of an 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 re-the 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, pertinent evidence upon which a jury sections 359 and 360, "There are two general classes of cases, where parol evidence is admissible to contradict or vary a writing; first, where there was fraud, accident, or mistake in the execution of the instrument itself; and second, where the execution of the instrument was in

alone should deduce the facts and draw the inferences. That was not for the court to do, as the plaintiffs' first, second and third points required.

The distinction between the cases cited by the very learned counsel for plaintiffs in support of their position, and the law

applicable to the evidence required in the motion for judgment non obstante verecase at bar, cannot be more clearly stated cto 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.

C. P. of

owner, etc.

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): "This was an action of assumpsit by the payee against the maker of a promissory note. The court below entered judgment

Practice Municipal lien Counter

for want of a sufficient affidavit of de-claim for damages in trespass-When

fense. We think the defendant was en

titled to go to trial. The affidavit is not counter-claim will not be stricken off — as 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 conset 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. mon to borrow the sum of $1,000 for the statutory proceeding under the Act of May This is not an action of assumpsit, but a 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, protional Bank of West York and paid it over for the benefit of Bittinger; the note being signed by the defendant to the order of the plaintiff, and that he, the defendant, received no part of the proceeds of the note.

[ocr errors]

viding that only claims recoverable in as

sumpsit can be set off in an action of assumpsit does not apply.

the defendant's counter-claim should be made promptly and before the filing of the reply

In such case, the application to strike off

thereto.

M. G. Schaeffer, for rule.

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 contractual relation excepting such as would arise by reason of their joint liability, and that the payee warranted the payment of the debt by Bittinger.

"The learned judge below held that this was attempting to contradict or, vary the terms of a written instrument by parol evidence, without proof or allegation of fraud or mistake, and that such departure from the terms of the written instrument must be shown by evidence clear, precise and indubitable. In this we

think he was in error."

A close examination of the case at bar with all the evidence adduced at the trial, convinces us that the questions raised by the pleadings and proof at the trial were properly left for the jury to decide, and no good reason has been shown to warrant this court in setting the verdict aside.

And now, September 29th, 1924: The rule for new trial is dismissed, and the

John A. Coyle, contra.

Hassler, J., Jan. 19, 1924.-On Oct. 4, 1921, the plaintiff filed a municipal claim longing to the defendant, in the Borough in this court against a house and lot beof New Holland, for the cost of laying a pavement in front of it, together with 20 per cent. penalty and 5 per cent. attorney filing of such claim is authorized by the fee, amounting in all to $519.99. The Act of May 14, 1915, P. L. 312, and its upon that municipal claim. The plaintiff supplements. This sci. fa. was issued filed a statement and the defendant filed an affidavit of defence, and subsequently she, on Nov. 27, 1922, filed a supplemental affidavit of defence, in which she sets forth as a set-off to plaintiff's claim a claim of $612, which she alleges is due her because of damages sustained by reason of the acts of plaintiff's agents and 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 purpose of this rule, it is stated, is to avoid circuity of action.

This application to strike off defendant's set-off is based, as stated in the motion, 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.

2.

Plaintiff avers that the defendant has no right to set off the amount of this counter-claim against the claim of the Borough of New Holland in the above

case.

This application should have been made promptly and before a reply was filed to defendant's claim of set-off by the plaintiff, but as the defendant does not object to this delay, we will not refuse the motion on that account.

nicipality, any defence arising directly from the subject-matter of the improvement will be allowed. Thus, in assigned claims, damages for the careless or unskillful manner in which the public improvements are constructed may be set off: Charlton v. Allegheny City, I Grant, 208; Philadelphia, to use, v. Bilyeu, 47 Pa. Superior Ct. 148.”

[ocr errors]

In Charlton v. Allegheny City, I Grant, 208, cited in the proceeding quotation, the action was a sci. fa. upon a municiIt 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 assumping 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 governed by the Practice Act of 1915, and any claim may be set off as a counter-claim by the defendant that could have been 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

manner in which the work was done, but he cannot set off the damages which the plaintiff may have done to him in another or independent transaction."

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 defence. Rule discharged.

C. P. of

American Trust Co. v. Kaufman

Allegheny Co. ed to Gustave Kaufman, who had transferred it to hinder and defraud his creditors. Though the proceedings was contested, judgment for plaintiff was entered, and on appeal, affirmed. See Ameri

Pleading and practice-Equity-Eject- can Trust Company v. Kaufman, 276 Pa.

ment -- Title to real estate judgment-Lien-Creditor's bill.

Foreign

35.

Gustave Kaufman died in the City of 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 has jurisdiction where judgment was recovered 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 tate. 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

ment docket, as it involved title to real es

right to invoke the aid of a court of equity.
Demurrer. Overruled.

Wm. J. Barton, for plaintiff.
Wm. Kaufman, for defendant.
Before Ford and Kline, JJ.

by the judgment; (c) That the lands or interest in the lands be sold by a trustee and the proceeds of said sale applied to the payment of the indebtedness; (d) That a receiver be appointed; (e) That the suit be indexed in the name of the defendant as a lien lis pendens against the real estate; (f) General relief.

In support of the demurrer, defendcomplete and adequate remedy at law; ant contends that plaintiff has a full,

Ford, J., May 21, 1924.-This is a demurrer to a bill of complaint filed by the American Trust Company. From the bill, the following facts appear: Gus-cited in the deed was not well pleaded, that the consideration of one dollar retave Kaufman became indebted to the being contradicted by the deeds themAmerican 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 and cancelled, thus indicating a considera large amount. The action was on notes and during the negotiations be- ation of at least $8,000.00. tween plaintiff and Gustave Kaufman for an extension and further financing, but prior to the beginning of the action in the Supreme Court, Gustave Kaufman and his wife by deed dated April 8, 1920, conveyed an undivided interest in the property described in the bill of complaint to one Alfred Sanborn, and, on the following day, April 9, 1920, Alfred Sanborn, conveyed the property to Sidonia S. Kaufman, the wife of Gustave Kaufman. 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

Mrs. Kaufman lives in New York, and on filing of the bill, service was ordered as provided by the Act of April 6, 1859, P. L. 387. An appearance de bene esse was entered on her behalf, and a motion. made to dismiss. In effect, the same questions raised by the motion to dismiss are urged in support of the demurrer. In disposing of the motion, after citing the facts, in an opinion filed, Carpenter, J., said:

« ПредишнаНапред »