Графични страници
PDF файл
ePub

of Pa.

effect. But this method is not exclusive Supr. c. and in certain circumstances would be Kauffman's Appeal cumbrous and inadequate. The grantor (Gustave Kaufman) was not and his grantee (Sidonia S. Kaufman) is not a Guara:tors, liability to one another for resident of this county. The judgment contribution--Position at trial conclutwas recovered in a foreign jurisdiction. The record title to the land was not then

size---Eridence to l'ary a written instruand is not now in Gustave Kaufman, but ment-Rei'iew of refusal to strike off is in Sidonia Kaufman, the defendant. verbose pieadings. The plaintill has not asked for a restrain

Where tive persons guaranteed the credit ing order but the bill involves the title to of another, and, after the insolveney of the

debtor and one of the guarantors, two of the land and was properly indexed. In no

guarantors each paid one fourth, and a third other way could purchasers or mortga- paid one half of the amount for which the

guarantors were liable, he who paid one half gors be notified.

As to the right of a can recover from the fourth guarantor who judgment creditor, whose judgment is has paid nothing one fourth of the amount

for which the guarantors were liable. not a lien here, to invoke the aid of a Where a party on the trial of a case, by

the presentation of a point to the court, took court of equity in the circumstances

a certain position, which was also the view here disclosed, we entertain no doubt. of the trial court and of the opposite party,

on appeal by the former, the position so We of course do not now undertake to taken was treated as a fixed fact.

Plain words of a written agreement can pass upon the merits of the judgment or

not be varied by testimony as to what was upon any question of title to the land. the understanding” of a party to the agree

ment at the time of its execution. If equity has jurisdiction the service of

I written agreement can not be varied by the bill cannot be set aside for the rea- uncertain testimony of the purpose for which sons assigned. In Houseman v. Gross- it was given, obtained by leading questions,

without dates or circumstances being given, man et al., 177 Pa., 453, Archbald, P. J., without referring to the presence or absence said: "This is nothing more or less than of the other parties in interest, and without a creditor's bill.'"

any reference to the time the party offering

the evidence executed the agreement. The opinion filed by the superior It is difficult to imagine a case where an court in appeal from decision rendereil appellate court would reverse a judgment en

tered on a verdict, simply because the lower by Judge Carpenter does not specifically court refused to strike off uunnecessarily refer to or comment upon whether or not verbose pleadings. plaintiff has an adequate remedy at law, Appeal to the Supreme Court of Penn but we are of opinion that Mr. Justice sylvania, No. 77. January Term, 1925, Carpenter has correctly stated the law from the judgment in favor of the plainapplicable to the facts recited in the bill tiff in Carlton L. Hoff v. Allen Kauffof complaint. In the case hereinbefore man, No. 10 January Term, 1922, in the referred to and reported in 276 Pa., 35, Court of Common Pleas of York Co., it was held that the deeds were for a tried before Ross, J. Affirmed. (See nominal consideration. The deed recites

same case sur affidavit of defense raising that the consideration was one dollar questions of law, 35 Y. L. R. 197). and other valuable considerations. There is affixed thereto a revenue stamp to the

Stewart and Gerber, for appellant. value of $8.00, and may, taken in con

Niles & Neff, for appellee. nection with other facts, justify a finding that the consideration was greater than Simpson, J., Feb. 9, 1925.--The Pullthe sum mentioned. It has been held man Motor Car Company, of York, Pa., that one dollar and other valuable con- of which plaintiff and defendant were siderations is a nominal one so far as dis directors and stockholders, had borrowed closed by the conveyance. Jennings v. all the money its directors deemed wise to Smith, 48 P. L. T., 125.

obtain from the local banking institutions We are of opinion that we would not and vet might soon be in need of addibe justified in sustaining the demurrer. tional working capital. It was suggested

a

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 calledd, 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 direciors 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 connecteil. Mr. Anderson was willson; later plaintiff reimbursed Anderson, ing to execute the guaranty, if the other thus paving 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 one

, ported 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 mary guarantors will have paid an equal agreement as follows:

share of the indebtedness which was due "We hereby request The First Na-l to the bank. Though appellant argues tional Bank of Chicago, to give and con- he is not liable, he himself stresses a fact tinue to give to the Pullman Motor Car which compels the conclusion that he is. Company, of York, Pennsylvania, credit In one of the points he presented to the as they may desire from time to time, court below, he asserted, inter alia : "The and in consideration of all and any such said C. K. Anderson according to the credit given we hereby guarantee prompt pleadings and the evidence, was not a copayment when due of any and all indebt- guarantor on the $25,000 guaranty; but euness now due or which may hereafter was a guarantor for the other grantors become due from Pullman Motor Car on said guaranty." This was also the Co., to said bank, howsoever created, or view of the court below and of appellee, arising, or evidenced, to the extent of and thus stands as a fixed fact. The ef$25,000 and waive notice of the accept- fect of this is that, so far as Anderson ance of this guaranty, and of any and all was compelled to pay the bank, because indebtedness at any time covered by the i of signing the guaranty agreement, each same. This guaranty shall continue un- of the other guarantors, for whom he til written notice from us of the discon- thus became suretu; were liable over to tinuance thereof shall be received by said him; and plaintiff having discharged that The First National Bank of Chicago." 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-163.1; The Haverford Loan & Building

Pa. 522.

paper, and

s'n v. The Fire Iss'n of Phila., 100 and done was the only proper inquiry.

i 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 ino guaranties. Jencech" can be overthrown by proving

, however Plaintiff alleged that the one for $25,000

, was given for the purpose of obtaining a simply the understanding of one of the general banking credit, and the one ior 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 l'ullman Motor Car Company, drawn up-it is, that such questions tually arise in on purchasers of its automobiles with proceedings between those signing the bills of lading attached; and that inder- papers and the pavees named in them; son was not required to execute it, be- and it is likewise true that a surety whó 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-urety, unless, in equity and good dant asserted that both of the guaranties conscience, the latter ought to make such were given for the last namell purpose,

contribution. It is impossible to see, and hence he was not liaile on the $25,- however, what equity there can be in ap000 loan. Is 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

was not disclosed to the tified that the $25,000 guaranty was pre other parties in like position with himsented to him for signature in the ab- ell. The objection to the question was, sence of plaintiff and of all the other therefore, properly sustained. guarantors), by the treasurer of the Pull- Inother witness, called by defendant, man Motor Car Company; defendant was permitted to testify as follows: "Q. was then asked by his counsel: “For Hill you state why that paper (the $25,what purpose did he (the treasurer) say ooo guaranty) was executed? A. My rehe was securing your signature to this collection is, that there was a guaranty paper?" This question was objected to, given the First National Bank of Chicaand in the course of the argument on the go to secure drafts with bills of lading objection, defendant's counsel said the attached. Q. State whether or not you “Defence is contined now, under the tes- knew another guaranty of $75,000 was timony offered by the plaintiff, to the also given in the same way? A. Yes. question of the purpose for which that (). State whether or not those two guar$25,000 guaranty was given

antees were given for the same purpose Now, if we can show by this witness according to your information? A. Yes, that when he signed that guaranty, hesir, that is my recollection.” L'pon such understood that it was to protect the uncertain testimony, obtained by leading First National Bank of Chicago against questions, without dates or circumstances the discount on drafts, or loss on account | being given, without referring to the preof discontinuing drafts, that is a proper sence or absence of the other parties in defence; it is simply a question of which interest, and without any reference to it was.” Because of this statement, the the time appellant executed the agreecourt below overruled plaintiff's objec-ment, the court below left to the jury to tion, whereupon defendant did not insist decide whether defendant "voluntarily upon an answer to the foregoing ques- signed the paper for the purpose of protion, but asked a new one, as follows: curing the money, and the money was "What were you informed, or what was procured for the purposes for which this your understanding, at the time you sign- paper was signed,” or whether defended that paper, as to the purpose of it?" | ant was deceived into signing it, in which This was objected to, and was properly latter event the court said defendant was rejected; defendant's understanding was entitled to a verdict. Hence the verdict a matter of no moment, what was said for plaintiff determined that defendant

*

*

*

on

signed the paper for the purpose express

C. P. of

York Co. ed in it, and this ends the controversy.

Stick v. Grove Had any other conclusion been reached, we would have been compelled to reverse because binding instructions, upon this

Pleadinys--Plaintiff's statement-Genpoint, had not been directed for plaintiff.

eral averments of negligence-Striking In the same connection it is further off statement. contended by appellant, that some un- In an action of trespass founded on neglistated equity exists in his favor, because zence, the plaintiff's statement should inhe was not an endorser on the note, and form the defendant just what acts or omis

sions the plaintiff charges him with, so that, did not know of its execution. If he had in the allegations of the acts or omissions are alleged that by an agreement between the not trne, the defendant can deny or explain

them by such evidence as he can produce. guarantors he was not to be liable, or

The Practice Act of 1915, P. L. 483, rethat he was legally prejudiced by any-quires that the plaintiff must give by his thing they did, of course he would have statement to the defendant fair notice of all been entitled to show it: Taussig's Ap

he expects to prove agianst him.

A plaintiff's statement in which the negligpeal. 221 Pa. 62. No such proof was ence charged was averred in general terms, made or offered. On the contrary, de- without particulars, was stricken off. fendant knew, for so the guaranty agree- Motion to strike off plaintiff's statement specified. that a loan, the ment in Miranda I. D. Stick v. llenry W. strength of it, might be made at any time, Grove, No. +0. January Term, 1924. in unless written notice of discontinuancel the Court of Common Pleas of York should be given. How the loan should be Co., Pa. evidenced, was a matter entirely for the

Sanel Kurts and R. P. Shercood. bank. Probably a note with endorse for defendant and motion. ments was required because of the custom of banks to thus evidence their loans, Hart'e y al. Gross, for plaintiff. in order to more easily satisfy the bank

Ross, J., January 26, 1925.--The deexaminers. In any event, the note but fendant has filed ihe following wordled proved the existence of the debt which motion to strike off : the guaranty provided might be created;

“And now, to wit, November 19, 1923, and hence defendant became equally defendant by its counsel, Samuel Kurtz bound with the others.

and Ray P. Sherwood, Esqs., moves the Appellant also assigns as error that the court to strike off the statement filed by court below erred in refusing to strike the plaintiff in this case for the followoff the statement of claim, because it was ing reasons: not a concise averment of the cause of

"1. Paragraph 8 of said statement is action, as required by section 5 of the not an averment of fact, but solely and Practice Act of May 14, 1915, P. L. 483. only a conclusion of law. It must be conceded there was a lack of

"2. Paragraph o of said statement is conciseness, since, for instance, all the not an averment of fact, but solely and averments regarding the $75,000 guar- only a conclusion of law. 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

The question raised by the motion has difficult to even imagine a case where an been decided by both judges in this court, appellate court would reverse a judg- and by other judges in the several courts ment, simply because the pleadings were of common pleas in other judicial disunnecessarily verbose; certainly this is tricts in this state, with such clearness not such a case.

and emphasis, that it bears heavily upon In view of what has been said, it is not the patience of a reviewing judge when necessary to consider the twenty-two as- we come in contact with general allegasignments of error separately. They are stions of "carelessness," when the law ver all overruled, and the judgment of the who drafted the pleading knows that the court below is affirmed.

proof at trial requires the generally al

*

*

*

[ocr errors]

*

leged "carelessness" to be reduced to C. P. of

York Co. facts, which will enable the jurors to de

Anstine v. Wilt, et al. termine what acts of commission or omission, under all the circumstances of the case, constituted what the pleader generally charges as "carelessness." Judgments-opening-Hearing on pe

In the case of Dietz v. American Agri-tition and answer. cultural Chemical Company, reported in

A judgment entered by confession under 29 D. R. 691-693, 33 York Legal Record, warrant of attorney should not be opened, 181-182, we said, “The Practice Act unless the instrument be overcome by testi1915, sec. 5, requires that every pleading cellor to decree that the note was void or

mony which, if believed, should move a chanshall contain, and contain only, a state- should be reformed because of forgery, fraud ment in a concise and summary form of or mistake. the material facts on which the party material averments of the petition are denied

A judgment can not be opened where the pleading relies for his claim,

by the answer and the petition is not supbut not

inferences, or conclu- ported by testimony. sions of law." "When a plaintiff alleges

Rule to show cause why the judgment in broad terms, that the defendant oper- of C. R. Anstine vs. George D. Wilt, and ated its car carelessly, negligently and Elmer E. Bowers, No. 1014 January unlawfully, the statement amounts to Term, 1924, in the Court of Common nothing more than the deponent's infer- Pleas' of York Co., Pa., should not be ence or conclusion.”

opened and the defendants let into a deJudge Edwards of Lackawanna Coun-fense. Rule discharged. ty, in Kennedy v. Scranton Rwys. Co.,

James G. Glessner, for defendant and 29, D. R., 751, Judge N. M. Wanner, of

rule. this court, in Bitner v. City of York, 30 D. R., 156, and Judge Baird of Eik Samuel Kurts, contra. County, in the case of Grumley v. Pollyreno, 4 D. & C., 205, have made practi- Ross, J., January 26, 1925.—The decally the same ruling.

fendants above named filed a sworn peThe eighth, ninth and tenth paragraphs tition, May 5, 1924, setting forth :

"That on the 14th day of August, of the plaintiff's statement lack just what the 5th section of the Practice Act 1915 into articles of agreement with the said

1923, the said Charles D. Wilt entered specifically requires.

plaintiff, C. R. Anstine, for the purchase The defendant should be informed of a farm situate in Lower Windsor 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 dollars, due April ist, 1924, and the balthe defendant to fairly meet such charge | ance, twenty-seven hundred and fifty with competent denial or explanation, so ($2750.001 dollars, payable April ist, that the jury may properly decide wheth- 1924. as will more fully appear by copy er an accident was caused by negligence, of said agreement, marked Exhibit "A" and if so, by whose negligence.

and made part of this petition; And now, January 26th, 1925, The "That prior to the execution of said plaintiff's statement is stricken from the agreement, the said Charles D. Wilt and record, with leave to file a new and more i C. R. Anstine went upon the farm situate specific statement within fifteen days in Lower Windsor 'lownship, described from this date; service thereof to be in said agreement, and the said C. R. mad in accordance with the act of as- Instine pointed out the boundaries and sembly.

limits of said farm and especially pointed

« ПредишнаНапред »