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sive-- Evidence to vary a written instrument--Review of refusal to strike off verbose pleadings.
grantee (Sidonia S. Kaufman) is not a Guarantors, liability to one another for resident of this county. The judgment contribution-Position at trial_concluwas recovered in a foreign jurisdiction. The record title to the land was not then and is not now in Gustave Kaufman, but is in Sidonia Kaufman, the defendant. The plaintiff has not asked for a restraining order but the bill involves the title to of another, and, after the insolvency of the land and was properly indexed. In no other way could purchasers or mortga- paid one half of the amount for which the gors be notified. As to the right of a judgment creditor, whose judgment is has paid nothing one fourth of the amount
Where five persons guaranteed the credit debtor and one of the guarantors, two of the guarantors each paid one fourth, and a third
guarantors were liable, he who paid one half can recover from the fourth guarantor who
for which the guarantors were liable.
Where a party on the trial of a case, by the presentation of a point to the court, took a certain position, which was also the view of the trial court and of the opposite party, on appeal by the former, the position so taken was treated as a fixed fact.
Plain words of a written agreement can not be varied by testimony as to what was the "understanding" of a party to the agree
not a lien here, to invoke the aid of a court of equity in the circumstances here disclosed, we entertain no doubt. We of course do not now undertake to pass upon the merits of the judgment or upon any question of title to the land. If equity has jurisdiction the service of the bill cannot be set aside for the reasons assigned. In Houseman v. Gross-it was given, obtained by leading questions, man et al., 177 Pa., 453, Archbald, P. J., said: This is nothing more or less than a creditor's bill.'"
The opinion filed by the superior court in appeal from decision rendered by Judge Carpenter does not specifically refer to or comment upon whether or not plaintiff has an adequate remedy at law, but we are of opinion that Mr. Justice Carpenter has correctly stated the law applicable to the facts recited in the bill of complaint. In the case hereinbefore referred to and reported in 276 Pa., 35. it was held that the deeds were for a nominal consideration. The deed recites that the consideration was one dollar
and other valuable considerations. There is affixed thereto a revenue stamp to the value of $8.00, and may, taken in connection with other facts, justify a finding that the consideration was greater than the sum mentioned. It has been held that one dollar and other valuable considerations is a nominal one so far as disclosed by the conveyance. Jennings v. Smith, 48 P. L. J., 125.
We are of opinion that we would not be justified in sustaining the demurrer.
ment at the time of its execution.
A written agreement can not be varied by uncertain testimony of the purpose for which
without dates or circumstances being given, without referring to the presence or absence of the other parties in interest, and without
any reference to the time the party offering the evidence executed the agreement.
It is difficult to imagine a case where an
appellate court would reverse a judgment encourt refused to strike off uunnecessarily verbose pleadings.
tered on a verdict, simply because the lower
Appeal to the Supreme Court of Pennsylvania, No. 77, January Term, 1925. from the judgment in favor of the plaintiff in Carlton L. Hoff v. Allen Kauffman, No. 10 January Term, 1922, in the Court of Common Pleas of York Co., tried before Ross, J. Affirmed. (See same case sur affidavit of defense raising questions of law, 35 Y. L. R. 197).
Stewart and Gerber, for appellant.
Simpson, J., Feb. 9, 1925.—The Pullman Motor Car Company, of York, Pa., of which plaintiff and defendant were directors and stockholders, had borrowed all the money its directors deemed wise to obtain from the local banking institutions and yet might soon be in need of additional working capital. It was suggested
the credit desired might be obtained from counted a demand note in the sum of the First National Bank of Chicago, Illi- | $25,000, and this amount was credited to nois, which had extended credit to an- the Pullman Motor Car Company. The other corporation, located in Chicago, of note was signed by the company, and enwhich plaintiff was vice president. To dorsed by all the parties who signed the ascertain whether this could be accom- $25,000 guaranty, except defendant. plished, plaintiff was sent to Chicago to make application to the bank. At first it At the time payment of the note was declined the proposition, but finally called, the Pullman Motor Car Company agreed to give the credit, provided a was insolvent and could pay nothing, guarantee, satisfactory to the bank, was and one of the guarantors was in like executed by the directors of the Pullman situation. Anderson and the other guarMotor Car Company, and also by one C. antors, except defendant, thereupon paid K. Anderson, who was president of the the bank in full, and the note and guarChicago corporation with which plaintiff anty agreement was assigned to Anderwas connected. Mr. Anderson was will-son; later plaintiff reimbursed Anderson, ing to execute the guaranty, if the other thus paying a double share, and the note guarantors would agree to save him and agreement were then assigned to harmless. plaintiff. In this suit, which was brought Plaintiff then returned to York, re-to compel defendant to pay plaintiff oneported the facts above stated, and the half of that double share, a verdict and proposition was agreed to. There was judgment was recovered by the latter, some dispute as to whether defendant and this appeal by defendant followed. knew of the agreement with Anderson, If plaintiff receives the amount of the but the jury found that he did. On re-judgment, each of the four solvent priquest, the bank submitted a guaranty agreement as follows:
"We hereby request The First National Bank of Chicago, to give and continue to give to the Pullman Motor Car Company, of York, Pennsylvania, credit as they may desire from time to time, and in consideration of all and any such credit given we hereby guarantee prompt payment when due of any and all indebtedness now due or which may hereafter become due from Pullman Motor Car Co., to said bank, howsoever created, or arising, or evidenced, to the extent of $25,000 and waive notice of the acceptance of this guaranty, and of any and all indebtedness at any time covered by the same. This guaranty shall continue until written notice from us of the discontinuance thereof shall be received by said The First National Bank of Chicago."
mary guarantors will have paid an equal share of the indebtedness which was due to the bank. Though appellant argues he is not liable, he himself stresses a fact which compels the conclusion that he is. In one of the points he presented to the court below, he asserted, inter alia: "The said C. K. Anderson according to the pleadings and the evidence, was not a coguarantor on the $25,000 guaranty, but was a guarantor for the other grantors on said guaranty." This was also the view of the court below and of appellee, and thus stands as a fixed fact. The effect of this is that, so far as Anderson was compelled to pay the bank, because of signing the guaranty agreement, each of the other guarantors, for whom he thus became surety, were liable over to him; and plaintiff having discharged that liability, the others were in duty bound This agreement was signed by plaintiff, to pay sufficient to put him on the same defendant and three other directors of plane with them. Each of the two other the Pullman Motor Car Company, and solvent guarantors had paid the bank the was sent to Mr. Anderson, who also ex- full amount of their one-fourth, and deecuted it and delivered it to the bank. A fendant had paid nothing; consequently, month later a similar guaranty, for $75.- in the absence of a controlling reason to 000, was executed by the same parties, the contrary, he should be required to with the exception of Anderson, and was pay plaintiff the one-fourth which the delivered to the bank. No notice of dis- latter paid Anderson, thus equalizing the continuance of either guaranty was ever contributions: Baily's Estate, 155 Pa. given. Some months later, the bank dis-'634; The Haverford Loan & Building
Ass'n v. The Fire Ass'n of Phila., 100 and done was the only proper inquiry. If the plain words of the agreement "we The real dispute between the parties hereby guarantee prompt payment when centered about an inquiry regarding the due and any and all indebtedness * reason for giving the two guaranties, however created, or arising, or eviPlaintiff alleged that the one for $25,000 denced," can be overthrown by proving was given for the purpose of obtaining a simply the understanding of one of the general banking credit, and the one for signatories, the law as to the force and $75,000 for the purpose of securing the effect to be given to written obligations bank in case it discounted drafts of the will be of no significance whatever. True Pullman Motor Car Company, drawn up- it is, that such questions usually arise in on purchasers of its automobiles, with proceedings between those signing the bills of lading attached; and that Ander- papers and the payees named in them; son was not required to execute it, be- and it is likewise true that a surety who cause the bills of lading gave the bank pays more than his share of an obligaadditional security besides the personal tion, cannot recover any part of it from liability of the other guarantors. Defen- a co-surety, unless, in equity and good dant asserted that both of the guaranties conscience, the latter ought to make such contribution. It is impossible to see, were given for the last named purpose, however, what equity there can be in apand hence he was not liable on the $25,000 loan. As this contention flatly con-pellant's claim for release from liability, tradicts the language of the agreement, simply because of an "understanding" the burden of proof regarding it rested which contradicts the clear expression of on him. In an attempt to carry it, he tes- the paper, and was not disclosed to the tified that the $25,000 guaranty was pre-self. The objection to the question was, other parties in like position with himsented to him for signature (in the ab-elf. The objection to the question was, sence of plaintiff and of all the other therefore, properly sustained. guarantors), by the treasurer of the Pullman Motor Car Company; defendant was then asked by his counsel: "For what purpose did he (the treasurer) say he was securing your signature to this paper?" This question was objected to, and in the course of the argument on the objection, defendant's counsel said the "defence is confined now, under the testimony offered by the plaintiff, to the question of the purpose for which that $25,000 guaranty was given
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Now, if we can show by this witness that when he signed that guaranty, he understood that it was to protect the First National Bank of Chicago against the discount on drafts, or loss on account of discontinuing drafts, that is a proper defence; it is simply a question of which it was." Because of this statement, the court below overruled plaintiff's objection, whereupon defendant did not insist upon an answer to the foregoing question, but asked a new one, as follows: "What were you informed, or what was your understanding, at the time you signed that paper, as to the purpose of it?" This was objected to, and was properly rejected; defendant's understanding was a matter of no moment, what was said
Another witness, called by defendant, was permitted to testify as follows: "Q. Will you state why that paper (the $25,000 guaranty) was executed? A. My recollection is, that there was a guaranty given the First National Bank of Chicago to secure drafts with bills of lading attached. Q. State whether or not you knew another guaranty of $75,000 was also given in the same way? A. Yes. Q. State whether or not those two guarantees were given for the same purpose according to your information? A. Yes, sir, that is my recollection." Upon such uncertain testimony, obtained by leading questions, without dates or circumstances being given, without referring to the presence or absence of the other parties in interest, and without any reference to the time appellant executed the agreement, the court below left to the jury to decide whether defendant "voluntarily signed the paper for the purpose of procuring the money, and the money was procured for the purposes for which this paper was signed," or whether defendant was deceived into signing it, in which latter event the court said defendant was entitled to a verdict. Hence the verdict for plaintiff determined that defendant
signed the paper for the purpose expressed in it, and this ends the controversy. Had any other conclusion been reached, we would have been compelled to reverse because binding instructions, upon this point, had not been directed for plaintiff.
Pleadings-Plaintiff's statement-General averments of negligence-Striking off statement.
In an action of trespass founded on negli
gence, the plaintiff's statement should inform the defendant just what acts or omissions the plaintiff charges him with, so that, if the allegations of the acts or omissions are not true, the defendant can deny or explain them by such evidence as he can produce. The Practice Act of 1915, P. L. 483, re
statement to the defendant fair notice of all he expects to prove agianst him.
A plaintiff's statement in which the negligence charged was averred in general terms, without particulars, was stricken off.
In the same connection it is further contended by appellant, that some unstated equity exists in his favor, because he was not an endorser on the note, and did not know of its execution. If he had alleged that by an agreement between the guarantors he was not to be liable, or that he was legally prejudiced by any-quires that the plaintiff must give by his thing they did, of course he would have been entitled to show it: Taussig's Appeal. 221 Pa. 62. No such proof was made or offered. On the contrary, defendant knew, for so the guaranty agreement specified. that a loan, on the strength of it, might be made at any time, unless written notice of discontinuance should be given. How the loan should be evidenced, was a matter entirely for the bank. Probably a note with endorsements was required because of the custom of banks to thus evidence their loans, in order to more easily satisfy the bank In any event, the note but examiners. proved the existence of the debt which the guaranty provided might be created; and hence defendant became equally bound with the others.
Motion to strike off plaintiff's statement in Miranda I. D. Stick v. Henry W. Grove, No. 46, January Term, 1924, in the Court of Common Pleas of York Co., Pa.
for defendant and motion.
Harvey A. Gross, for plaintiff.
fendant has filed the following worded Ross, J., January 26, 1925.-The demotion to strike off:
defendant by its counsel. Samuel Kurtz "And now, to wit, November 19, 1923, and Ray P. Sherwood, Esqs., moves the court to strike off the statement filed by the plaintiff in this case for the following reasons:
"1. Paragraph 8 of said statement is not an averment of fact, but solely and only a conclusion of law.
Paragraph 9 of said statement is not an averment of fact, but solely and conclusion of law.
Appellant also assigns as error that the court below erred in refusing to strike off the statement of claim, because it was not a concise averment of the cause of action, as required by section 5 of the Practice Act of May 14, 1915, P. L. 483. It must be conceded there was a lack of conciseness, since, for instance, all the averments regarding the $75,000 guar- only a anty agreement were unnecessary. The "3. Paragraph 10 of said statement. error, however, was not a harmful one, is not an averment of fact, but solely and hence there is no reason for a rever- and only a conclusion of law." sal: Shultz v. Seibel, 209 Pa. 27. It is difficult to even imagine a case where an appellate court would reverse a judgment, simply because the pleadings were unnecessarily verbose; certainly this is not such a case.
In view of what has been said, it is not necessary to consider the twenty-two assignments of error separately. They are all overruled, and the judgment of the court below is affirmed.
The question raised by the motion has been decided by both judges in this court, and by other judges in the several courts of common pleas in other judicial districts in this state, with such clearness and emphasis, that it bears heavily upon the patience of a reviewing judge when we come in contact with general allegations of "carelessness," when the lawyer who drafted the pleading knows that the proof at trial requires the generally al
leged "carelessness" to be reduced to C. P. of
In the case of Dietz v. American Agri-
ence or conclusion."
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Judge Edwards of Lackawanna County, in Kennedy v. Scranton Rwys. Co., 29, D. R., 751, Judge N. M. Wanner, of this court, in Bitner v. City of York, 30 D. R., 156, and Judge Baird of Elk County, in the case of Grumley v. Pollyreno, 4 D. & C., 205, have made practically the same ruling.
The eighth, ninth and tenth paragraphs of the plaintiff's statement lack just what the 5th section of the Practice Act 1915 specifically requires.
Anstine v. Wilt, et al.
Judgments-Opening-Hearing on petition and answer.
A judgment entered by confession under warrant of attorney should not be opened, unless the instrument be overcome by testimony which, if believed, should move a chanshould be reformed because of forgery, fraud or mistake.
cellor to decree that the note was void or
material averments of the petition are denied
A judgment can not be opened where the
by the answer and the petition is not supported by testimony.
Rule to show cause why the judgment of C. R. Anstine vs. George D. Wilt, and Elmer E. Bowers, No. 1014 January Term, 1924, in the Court of Common Pleas of York Co., Pa., should not be opened and the defendants let into a defense. Rule discharged.
James G. Glessner, for defendant and rule.
Samuel Kurts, contra.
Ross, J., January 26, 1925.-The defendants above named filed a sworn pe
tition, May 5, 1924, setting forth:
"That on the 14th day of August, into articles of agreement with the said 1923, the said Charles D. Wilt entered plaintiff, C. R. Anstine, for the purchase
of a farm situate in Lower Windsor
The defendant should be informed just what acts or omissions the plaintiff Township, York County, Pennsylvania, charges him with, so that, if the acts or formerly known as the Tone Martin omissions are not true, the defendant Farm, also three woodlots on a different can deny or explain them by such evi-tract formerly the M. Kinard tract, for dence as he can produce.
which the said Charles D. Wilt was to
In other words, the Practice Act 1915 pay the sum of thirty-two hundred and requires that the plaintiff must give to fifty ($3250.00) dollars, as follows, to the defendant fair notice of all he ex-wit: Note of Five hundred ($500.00) pects to prove against him, in time for the defendant to fairly meet such charge with competent denial or explanation, so that the jury may properly decide whether an accident was caused by negligence, and if so, by whose negligence.
And now, January 26th, 1925, The! plaintiff's statement is stricken from the record, with leave to file a new and more specific statement within fifteen days from this date; service thereof to be mad› in accordance with the act of assembly.
dollars, due April 1st, 1924, and the balance, twenty-seven hundred and fifty ($2750.00) dollars, payable April 1st, 1924, as will more fully appear by copy of said agreement, marked Exhibit "A" and made part of this petition;
"That prior to the execution of said agreement, the said Charles D. Wilt and C. R. Anstine went upon the farm situate in Lower Windsor Township, described in said agreement, and the said C. R. Anstine pointed out the boundaries and limits of said farm and especially pointed