author: Wickham, J., Willard, J.,

text:
    Estate of Lavina Wampole. Appeal of Christ’s Evangelical Lutheran Church of Trumbauersville.
    Will— Construction — Latent ambiguity — Evidence.
    A latent ambiguity may be explained by evidence dehors the will.
    For the purpose of determining the object of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will.
    Argued Nov. 18, 1896.
    Appeal, No. 61, Nov. T., 1896, by Christ’s Evangelical Lutheran Church, from .decree of O. C. Bucks Co., sustaining exceptions to ..report of auditor in the estate of Lavina Wampole, deceased.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Willard, J., dissents.

      Exception to auditor’s report.
    Harvey D. Fellman, as executor of the will of Lavina Wampole, deceased, filed a final account on the 3d of June, 1895.
    Christ’s Evangelical Lutheran Church, of Trumbauersville, Bucks county, Pa., filed exceptions to the account on the 25th day of June, 1895.
    An auditor, Elias Carver, Esq., was appointed by the orphans’ court of Bucks county to pass upon the exceptions, restate the account if necessary, and make distribution of the fund in the hands of the executor. The auditor made a report which Avas filed October 14, 1895, awarding the residue of the estate to Christ’s Evangelical Lutheran Church. The German Reformed Church of Trumbauersville,. on the 23d of October, filed exceptions to that part of the report distributing the residue of the estate to Christ’s Evangelical Lutheran Church. The court, Yebkes, P. J., sustained the exceptions and made a decree on the 9th day of March, 1896, directing that the residue of the estate be distributed to the Evangelical Lutheran Church and the German Reformed Church, jointly.
    Other facts appear in the opinion of the Superior Court.

      Errors assigned were, (1) in sustaining the third exception to the report of the auditor, which was as follows:
    “ The auditor erred in distributing the residuary balance to . the Evangelical Lutheran congregation of Trumbauersville.”
    (2) In not sustaining the report of the auditor distributing the residue of the estate to Christ’s Evangelical Lutheran Church, of Trumbauersville, Bucks county, Pennsylvania.
    (3) In making the following decree:
    “ And now to wit, March 9, 1896, the third exception is sustained, and it is directed that the residue of the estate be distributed to the Evangelical Lutheran Church and the German Reformed Church, jointly, owners of the Trumbauersville Church and associated together through their congregations, by regulations adopted in 1872, for the government, maintenance and use of said Trumbauersville Church.”

      Henry Lear, for appellant.
    It is contended that the bequest is to one only of the Trumbauersville “ churches.” The will itself does not indicate Avhich one, but the circumstances established. by the evidence produced before the auditor clearly show it could have been only the Evangelical Lutheran Church.
    The rule is thus stated in the syllabus to the case: Appeal of Washington and Lee University, 111 Pa. 572; Wigram on Wills, 57; Theobold on Wills, ch. 14, p. 95; Kilvert’s Trust, L. R. 12 Eq. 183; L. R. 7 Ch. 170; Webster v. Morris, 66 Wis. 366; 57 Am. Rep. 278; Hinckley v. Thatcher, 139 Mass. 477; Tilton v. American Bible Society, 60 N. H. 377; Newell’s Appeal, 24 Pa. 197.

      Samuel Z. Freed, for appellee.
    The word “ church ” in its primary sense, we find, not only applies to the spiritual body of Christians but to their place of worship. It means the place to assemble for worship : Appeal of Washington and Lee University, 111 Pa. 572 ; Church v. Allison, 10 Pa. 416. The intent of the testator must govern the construction of the will, but it must be the intention expressed in the will, to find which we may examine every word and expression of the same. As a will necessarily applies to persons or things external, any evidence may be considered which has a tendency to give effect and operation to the'words of the will: Tucker v. Seaman’s Aid Socieiy, 7 Metcalf, 205.
    January 18, 1897:
   Opinion by

Wickham, J.,

Two incorporated religious bodies, viz: Christ’s Evangelical Lutheran Church of Trumbauersville, and the German Reformed Church of Trumbauersville owned in common, and used alternately, a house of worship in the village of Trumbauersville.

Lavina Wampole, for many years before her death a widow, had been baptized in the first named church, when young, for over thirty years had been a regular member and communicant thereof, and regularly contributed to the voluntary funds raised, from time to time, to pay its necessary expenses. With the other congregation she seems to have had nothing whatever to do. We may properly assume that she had, for the sect and congregation in which she lived and died, that degree of regard, reverence and desire to help which the average woman, even more than the average man, entertains for the church wherewith her lot may be cast.

When she died a controversy arose as to the meaning of the residuary clause of her will, which clause reads as follows: “ I give and bequeath the remainder of my estate, if any, to the Trumbauersville Church, to be used for the general benefit of said church.” The description in this bequest does not fit either of the religious bodies already mentioned, nor any other in existence. There is therefore a latent ambiguity which may be explained by evidence dehors the will: Newell’s App., 24 Pa. 197; App. of Washington and Lee University, 111 Pa. 572. “For the purpose of determining the object of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will.” Wigram on Wills, Prop. V. Elsewhere (see section 96) the same writer says, “ Every claimant under a will has a right to require that a court of construction, in the execution of its office, shall, by means of extrinsic evidence, place itself in the situation of the testator, the meaning of whose language it is called upon to declare.”

While the construction of the will before us cannot be said to be altogether free from difficulty, we nevertheless think, that the extrinsic explanatory evidence sufficiently shows that it was the intention of the testatrix to benefit thé congregation to which she belonged, by lessening, in a small degree, its pecuniary burdens and not to aid, directly or indirectly, a religious body to which she was a stranger and with some of whose tenets we may presume she disagreed. By way of illustration, we may take the case of a bequest to a woman, and two persons, either of whom might be the legatee, appear as claimants of the legacy. One of them, however, is shown by extrinsic evidence to be the mother of the testatrix, to whom the latter was attached, and the other a mere acquaintance. No one would hesitate to say that the mother was the beneficiary, unless the inference, to be drawn from the relationship, were overcome by other controlling facts. In a sense, the Lutheran Church was the spiritual mother of the present testatrix, a circumstance entitled to the highest consideration.

In reaching our conclusion, we do not overlook the fact that the church building and burying grounds are maintained at the joint expense of both congregations. This circumstance, coupled with others of lessee weight referred to by the learned judge of the court below, would be decisive in favor of his view, were it not for the important relation the testatrix bore .to the Lutheran congregation, as well as the further facts, that, While living, all her contributions were made to that body, and that she exhibited no interest in the spiritual or temporal affairs of the other society: Gilmer v. Stone, 120 U. S. 586.

The decree of the court below is reversed, and it is ordered ¡and adjudged that distribution be made in accordance with the -report of the auditor. It is further directed that the costs of the appeal be paid by the appellee.

Willard, J.,

dissenting, January 18, 1897:

The Trumbauersville Church is a house of worship located in

Trumbauersville^ in the county of Bueks. It is owned and occupied jointly by two religious societies, one known as Christ’s Evangelical Lutheran Church, the other bjr the German Reformed Church. The evidence shows that the church building was owned, maintained and kept in order and repair by both societies under rules and regulations in writing adopted by both as to the occupancy of the church. Under this arrangement a bequest to this church could undoubtedly be sustained under the joint regulations existing between the two societies. On the 23d day of March, 1893, Lavina Wampole of the township .of Richland of the county of Bucks, made her last will and testament and died on the 20th day of May, 1894, leaving said last will and testament dated as aforesaid. Said will contained the.following residuary clause: “Item-5, I give and bequeath the remainder of my estate, if any, to the Trumbauersville Church to be used for the general benefit of said church.”

Construing the will by the language used, the testatrix undoubtedly intended the bequest to go to said church for its support, and maintenance, for the benefit of the societies worshipping therein nt the time the will was made and at the death of the testatrix. In my opinion there is no such ambiguity in the language used iu the residuary clause as calls for the construction placed upon this will by the majority of this court.

It is true that the testatrix was a member of “ Christ’s Evangelical Lutheran Churchj” and during her lifetime contributed of her scanty means to its support.

Had there been latent ambiguity in the residuary clause, her membership and contributions might properly be considered; but there is no such ambiguity, and I am of the opinion that this ' old lady, near the close of her earthly career, took the broad nonsectarian view and intended her bounty to go to, maintain the place of worship plainly designated, and keep it in good order and repair for the benefit of all Christians worshipping therein, whether known as Lutherans or German Reformers. I would affirm the judgment on the able opinion of the court below.


source: Caselaw Access Project

author: Smith, J.,

license: Public Domain

text:
    John Pfaff, Appellant, v. Charles Leh Thomas.

      Practice, G. P. — Opening judgment — Orderly practice.

    In cases where judgments are sought to be opened too much emphasis cannot be laid upon the necessity for a less careless and more orderly practice. The records import verity; any attempt to impeach or set aside a judgment for matters dehors the record should be permitted only after a plain issue has been made up by petition verified by affidavit, with answer responsive thereto, and the testimony should be limited to the issue. Being decrees wholly in equity, the reasons for them become important, and the action of the court should not be formulated in the bald entries of “ rule absolute ” or “ rule discharged.” The appellate court obliged’ to review should have the benefit of the reasons which moved the conscience of the chancellor.

      Jurisdiction, G. P. — Opening judgment — Review of discretion.

    The act of May 20, 1891, P. L. 101, allowing appeals from an order of the court below opening a judgment does not take away the discretion vested in such court, and the exercise of such discretion will be reviewed upon the usual principles governing the exercise of judicial discretion.
    Such applications are addressed to the equity powers of the court, and the judge who hears them sits as a chancellor and disposes of them in accordance with the principles of equity. The decision of the chancellor must, of course, rest upon competent evidence, and if not so founded it will be set aside by the appellate court.

      Argued. Dec. 18, 1896.
    Appeal, No. 168, Not. T., 1896, by plaintiff, from order of C. P. No. 4, Phila. Co., March T., 1896, No. 984, making absolute rule to open judgment and let defendant into a defense.
    Before Rice, P. J., Wheard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Rule to open judgment.
    The facts sufficiently appear in the opinion of the Superior Court.

      Error assigned was making absolute rule to open judgment and let defendant in to make defense.

      Clinton O. Mayer, with him Joseph L. Greenwald, for appellants.
    The judgment should not hare been opened, as the application rests only on oath against oath with the presumptive evidence of the papers themselves, in favor of the plaintiff: Lomison v. Faust, 145 Pa. 8; Christie v. Steelsmith, 158 Pa. 117; Tidioute v. Shear, 161 Pa. 508. Plaintiff’s evidence was corroborated in this case by two disinterested witnesses: Lomison v. Faust, 145 Pa. 8; Christie v. Steelsmith, 158 Pa. 117; Tidioute v. Shear, 161 Pa. 508; Fisher v. King, 153 Pa. 3; Woelfel v. Hammer, 159 Pa. 446.

      Walter Willard, with him Edward Willard, for appellee.
    The court will not interfere with the discretion of the court below unless error is made clearly to appear: Christie v. Steelsmith, 168 Pa. 117; Tidioute v. Shear, 161 Pa. 508.
    January 18, 1897:
   Opinion by

Smith, J.,

This is an appeal by the plaintiff from an order making absolute a rule to open a judgment entered on a single bill with warrant of attorney, upon the allegation of partial want of consideration, and of duress in its execution. In view of the testimony of the defendant and that of his father-in-law, together with the plaintiff’s admission that at the time the instrument was executed he told the defendant that if the money demanded was not paid he would have him arrested, we are not prepared to say that the court below erred in the exercise of its discretion: Stockwell v. Webster, 160 Pa. 473.

Prior to the act of May 20,1891, no appeal would lie to an order of the court opening a judgment because such an order was interlocutory: Building & Loan Ass’n v. Hoagland, 87 Pa. 326. Under the provisions of this act, however, appeals may be taken from such orders and are to be heard “ in like manner as appeals from final decrees to the Supreme Court.” But neither the act of May 20, 1891, nor that of April 4, 1877 takes away the discretion vested in the common pleas, in regard to the opening of judgments. Those acts give the right of appeal to any party aggrieved by the decision of the court, on proceedings to open, vacate or strike off judgments entered “by amicable confession, upon warrant of attorney or otherwise; ” thus making reviewable that which was formerly a matter of absolute discretion in the court below. Upon appeal under either act the appellate court is not called upon to review the whole case in extenso; its function is to examine and determine whether the discretion of the common pleas has been properly exercised. These applications are addressed to the equity powers of the court, and the judge who hears them sits as a chancellor and disposes of them in accordance with the principles of equity: Kelber v. Plow Co., 146 Pa. 485 ; Jenkintown Nat. Bank v. Fulmor, 124 Pa. 337. The decision of the chancellor must, of course, rest upon competent evidence, and if not so founded it will be set aside by the appellate court: Woods v. Irwin, 28 W. N. 187. With this qualification, however, where the court below passes upon the credibility of the witnesses and the weight of the evidence, and bases its decision upon the whole case presented, the conclusion thus arrived at will not be disturbed unless it is clearly shown that a mistake-in law or in fact has been committed.

The growing frequency of this class of appeals, and the duty of the appellate courts to review the proceedings in the same manner as if they were regular proceedings in equity, suggest that we again call attention to the defective and unsatisfactory manner in which these cases are presented for review. In the case of Fisher v. King, 153 Pa. 3, a rule to open the judgment was granted on the defendant’s affidavit, and without answer, the parties proceeded to take testimony, after which the cause was submitted and disposed of by the court without further pleadings. The decree of the court in that case was, “rule discharged.” The only difference between the proceedings in that case and the proceedings in the one before us is that here the decree is “ rule absolute.” Speaking of the necessity of a more orderly practice, the Supreme Court, in Fisher v. King, through Mr. Justice Dean, said: “ The records of the court import verity; any attempt to impeach or set aside a judgment for matters outside the record should be permitted only after a plain issue has been made up by petition verified by affidavit, with answer responsive thereto; then the testimony taken should be limited to the issue. In such proceedings the judge of the common pleas is called upon to exercise equity powers ; he passes on the evidence and the law, and although a jury may intervene, the efi'd is the same, the final decree of a court of equity. Being decrees wholly equitable, the reasons for them become important. The entries, ‘rule absolute,’ or ‘rule discharged,’ are, doubtless, in the mind of the court, the dictates of a sound discretion; still, in reviewing that discretion, we 'cannot always take for granted what does not appear, or is not a reasonable inference from what does appear. . . . Therefore the findings of fact and the inferences therefrom are just as essential to a fair review,” in these cases, “ as those of a master in chancery,” in regular equity proceedings.

As this case goes back for trial on the issues raised by the affidavit upon which the rule to open is based, we refrain from any discussion of the matters disclosed by the depositions.

The appeal is dismissed at the costs of the appellant, but without prejudice, etc.


text:
    Rudolf Louis Jalass, Appellant, v. Charles Young.

      Real estate — Delivery of possession — Cause of action.

    No cause of action is shown where the plaintiff in action for failure to deliver possession of premises purchased, knowing there was no written lease, and with full opportunity to inquire of the tenant, instead of protecting himself by an express agreement for possession at a specified time, chose to rely on the landlord’s recollection as to close of the tenancy, and so failed to give requisite notice to quit. In the absence of intentional deceit, this left him without remedy for .the mistake into which the parties fell, as to the notice to quit.

      Vendor and vendee — Beal estate — Delivery of possession.

    When a man sells a house, which is subject to a lease, unless he agrees that he will procure possession at a particular time, he is not bound to do so. '
    Argued, Dec. 17, 1896.
    Appeal, No. 165, Nov. T., 1896,' bji plaintiff, from judgment of C. P. No. 4, Phila. Co., March T.; 1894, No. 139, on verdict for defendant.
    Before Rice, P. J.; Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Assumpsit to recover damages for failure to deliver possession of premises purchased subject to a lease. Before Thayer, P. J,
    The facts sufficiently appear in the opinion of the Superior Court.
    The court directed a verdict for defendant. Plaintiff- appealed.

      Error assigned was giving binding instructions to the jury to find a verdict for the defendant.

      Henry Budd, for appellant.
    Amos Briggs, for appellee.
    January 18, 1897:
   Opinion by

Smith, J.,

The plaintiff avers, as his cause of action, “ that the defendant in the month of November, 1892, sold the premises 2050 South street, in the city of Philadelphia, to the plaintiff who acquired title thereto by deed dated the seventh day of November, 1892, Defendant then and there expressly promised and agreed'to and with the plaintiff that possession could be had thereof- on, the nineteenth day of April, 1893, by giving three months’ notice to the tenant in possession, who held from year to year, and, then and there undertook to deliver the possession thereof in accordance with said agreement.”

The evidence wholly fails to establish the agreement thus, alleged. It shows that the plaintiff desiring to enlarge his place, of business, asked the defendant “ early in the summer, or in the middle of the summer ” of 1892, if he would sell, and when, the tenant’s term expiréd. There was no written lease, but the. defendant referring to Ms books toM the plaintiff that the term-expired April 19,1893. Some further conversation took place, but the plaintiff neither bought nor agreed to buy. About a month later the plaintiff again called on the defendant and, as testified, “We spoke the same things over again.” Still no agreement of purchase was made. In October, however, a purchase was made, in the manner thus related by the plaintiff: “ I made up my mind, and I went to him and said, ‘Mr. Young, I believe I buy it, I have to do so.’ So I paid him $50.00 on it, and we spoke the same over again when the time was up. I asked him how he could get those people out. He says ‘ We have got time. When Mr. Quinn signs the deed to you he makes out a notice. When you get your deed we will serve notice.’ He gave me a receipt for the $50.00 I paid him.”

The deed was dated November 7. The transaction was finally closed on November 15. Mr. Quinn, who acted as attorney for the parties, prepared a notice to quit, which was dated November 15, and served on Richard Bracken, the tenant, on the same day. It was of the following tenor: “ Philadelphia, Nov. 15, 1892, Mr. Richard Bracken, Sir: Being in the possession of a certain messuage or tenement, with the appurtenances, situate No. 2050 South Street, which said premises were demised to you by Charles Young for a certain term, which will terminate and expire on the 19th day of April, A. D. 1893, I hereby give you notice, that it is my desire to have again and repossess the said messuage or tenement, with the appurtenances, and I therefore do hereby require you to leave the same upon the expiration of the hereinbefore mentioned term.” This notice was signed by Charles Young and Rudolph L. Jalass.

The tenant paid rent to the plaintiff until April 19,1893, but declined to leave at that time. On proceeding by the plaintiff to recover possession, under the landlord and tenant law, it appeared that Bracken’s lease expired March 19, instead of April 19. An appeal was taken to the common pleas, but the record of the proceedings there is not printed. The paper-book of the appellant merely sets forth that “ Mr. Wireman offered in evidence the whole of record in common pleas No. 3, appearance docket, March term, 1895, showing nonsuit.” It was contended, on the argument, that the proceeding failed by reason of the insufficiency of the notice. If the decision here turned on this point, we should regard the notice as sufficient. The misstatement as to the end of the term could not mislead the tenant, who of course knew when the current year expired. It conformed substantially to the statutory requirements and was served more than four months before the actual close of the year. In Wenger v. Raymond, 104 Pa. 33, a notice dated and served December 81, 1880, requiring possession of premises leased for a term which “ will expire on the 31st of March, 1880,” was held sufficient; being “ explicit and clear in this, that possession was demanded at the expiration of the lease.” This, also, was what the notice in the present case demanded.

But whatever the effect of the notice, as a termination of the tenancy, it is clear that the defendant made no promise to place the plaintiff in possession of the property at the end of the term, and that no such promise was implied from the conveyance. It is upon such a promise that the plaintiff seeks to recover. It is conceded that the defendant’s representation as to the close of the tenancy was erroneous, but it is equally clear that it was honestly made, and with no intent to deceive. It is not claimed that the defendant derived any advantage from the misstatement, or that the plaintiff would not have bought had he known that the year ended in March. On the contrary as the plaintiff was anxious for an early possession of the premises, knowledge of this would no doubt have been an inducement to purchase, and a corresponding advantage to the defendant in making the sale.

The plaintiff, knowing there was no written lease, and with full opportunity to inquire of his.tenant, instead of protecting himself by an express agreement for possession at a specified time, chose to rely on the landlord’s recollection as to the close of the tenancy. In the absence of intentional deceit, this left him without remedy for the mistake into which the parties thus fell.

The judgment must therefore be affirmed.


author: Beaver, J.,

text:
    Lewis Sacks and Ida Sacks, his wife, v. Andrew Schimmel, Appellant.

      Parol evidence — Reform of written contract — Fraud.
    The evidence of fraud relied upon for recovery independently of a written contract-, when such writing is in existence, must be of the same character as if relied upon to reform the contract.

      Actions — Distinction between deceit and contract.

    There is a clear distinction between an action based upon deceit, which is the inducing cause of a written agreement, and an action for damages under the agreement itself.

      Landlord and tenant — Representations by. landlord — Deceit—Parol evidence — Questionfor jury.

    Parol evidence is admissible in an action for deceit, and the case is for the jury where the evidence tends to show a disclosure of the business to be conducted by lessees; essential necessity for a weather-tight bay window; assurance by the landlord of good condition of the window; acceptance by lessee by reason of this assurance, and bad condition of the bay window, resulting in serious damage to the plaintiff: Wolfe v. Arrott, 109 Pa. 473, followed.
    Argued Dec. 18, 1896.
    Appeal, No. 65, Nov. T., 1896, by defendant, from judgment of C. P. No. 1, Phila. County March T., 1895, No. 1032, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith:, JJ.
    Affirmed.
    Smith, J., dissents.
    Trespass for deceit in misrepresenting condition of leased premises. Before Biddle, P. J.
    The facts are sufficiently disclosed in the opinion of the Superior Court.

      Errors assigned were (1) In charging, as requested by counsel for plaintiffs, “ If the jury believe that the defendant stated to the plaintiffs, before they rented the store, No. 816, North Second Street, Philadelphia, that the bulk windows and the roof and drainage thereof were in first-class condition, suitable for the display of millinery, well knowing that the roof was in bad condition, liable to cause damage to any goods placed in the windows, and that damage did subsequently occur to plaintiffs’ goods from the defective roofing, the defendant is responsible in damages to the plaintiffs.”

      (2) The learned judge erred in declining to charge as requested by counsel for defendant, “The evidence having shown that the plaintiffs entered into possession of the premises by virtue of a lease, the conditions of that lease must be enforced unless the plaintiffs have shown fraud, accident, or mistake ; and no fraud, accident or mistake having been shown, and the lease obliging to repair, your verdict should be for the defendant.”
    (3) In declining to charge, as requested by counsel for defendant, “A written agreement is the visible evidence of the purpose of the parties, and it cannot be reformed except by the evidence of two witnesses or of one with corroboration as to fraud, accident or mistake; and the lease containing a covenant for repairs, and this evidence failing in this case, your verdict should be for the defendant.”
    (4) In declining to charge, as requested by counsel for defendant, “The plaintiff, Ida Sacks, cannot recover in this action under the evidence, and your verdict as to her must be for the defendant.”
    (5) In declining to charge, as requested by counsel for defendant, “ The plaintiff, Lewis Sacks, can only recover if he has shown that he did not make the contract of lease in evidence or that the terms of the said lease were altered by subsequent agreement among the parties, and this not having been shown, your verdict should be for the defendant.”
    (6) In declining to charge, as requested by counsel for defendant, “ Under all the evidence your verdict should be for the defendant.”

      Thos A. Fahy, with him Chas H. Pile, for appellant.
    The assignments, two to six, may be considered together. They involve the single question of whether in the absence of fraud, mistake or trust, parol evidence is admissible to vary the terms of a written lease (in which a tenant agrees to make repairs) by showing what was said between the parties before and after the lease was signed.
    It is abundantly established by the authorities that this proposition must be answered in the negative: Hallowell v. Lierz, 171 Pa. 577; Huber v. Baum, 152 Pa. 626; Wodock v. Robinson, 148 Pa. 503; Eberle v. Bonafon, 17 W. N. C. 335.

      Chas. F. Eggleston, with him W. W. Weigley, for appellees.
    —The misrepresentations constitute fraud and deceit, and damages resulting from such false statements are a good defense for arrears of rent: Wolfe v. Arrott, 109 Pa. 473.
    Even if it be an attempt to vary the lease, parol evidence is admissible to establish a contemporaneous oral agreement, which induced the execution of a written contract where it tends to show fraud, mistake or trust, though it may vary, change or reform the instrument: Thomas & Sons v. Loose, 114 Pa. 35; Johnson v. Blair, 126 Pa. 426 ; Eberle v. Bonafon, 17 W. N. C. 335.
    The owner of a building is liable to a person whose goods are destroyed because of the insufficiency of the building for the purposes for which it was erected and leased, and that too, without having made any fraudulent representations, and where there was no lease or agreement between the owner and the plaintiff: Godley v. Hagerty, 20 Pa. 387; Carson v. Godley, 26 Pa. 111.
    The plaintiffs had their choice of two things, fraud having been shown in the contract: they might have rescinded the lease, and recovered back the money paid, or they could stand to the bargain and recover damages. They did the latter: Guffey v. Clever, 146 Pa. 548; Heastings v. McGee, 66 Pa. 384; Harvey v. Gunzberg, 148 Pa. 294.
    January 18,1897:
   Opinion by

Beaver, J.,

The plaintiffs brought an action of trespass against the defendant, to recover damages sustained by them in consequence of an alleged deceit practiced by the defendant, by reason of which the plaintiffs were induced to take a lease, evidenced by writing, and enter into possession of certain premises in the city of Philadelphia. Both of the plaintiffs made an examination of the premises. They informed the defendant of the character of their business, which was the carrying on of a millinery establishment, and that they desired to occupy the premises for that purpose. The business, like the material with which it deals, consisting largely of show; they made special inquiry as to the bulk windows, and, as they allege, were informed that the premises were in good condition, and that a new roof had been put upon the windows in which their goods were to be displayed. As to this representation defendant bad knowledge, — the plaintiffs had none. If false, and they acted upon it, it was undoubtedly such a deceit as would sustain this action. It is to be observed that the action is entirely independent of and in no way based upon the lease made subsequent to the representations which were the inducement to its execution. There is no claim under it. There is no attempt to reform it. The plaintiffs’ case could have been made out without any reference to it. It was offered in evidence by the defendant, and must undoubtedly be held to be the agreement of the parties as therein expressed, as to which there was no disagreement or dispute. There is undoubtedly a clear distinction between an .action like the present, based upon deceit, which is the inducing cause of a written agreement, and an action for damages under the agreement itself. We are not disposed, however, to relax the rule that parol evidence as to a fraud in the making of a written agreement, the object of which is to change the legal effect of such a writing, must be clear, precise and indubitable, that is, the evidence of fraud relied upon for recovery independently of a written contract, when such writing is in existence, must be of the same character as if it were relied upon to reform the contract. ■ Is the evidence in this case of such a character? '

Both the plaintiffs testify that in a personal interview with the defendant prior to the execution of the lease, they informed him as to their business, and that they required bulk windows for the display of their goods; that the house was represented by him to be in good condition, and that the bulk windows had a new roof on them, and that they were in perfect condition. That the defendant understood the business in which the plaintiffs were to engage is shown by the lease which he offered in evidence, in the second clause of which it is provided: “ The lessee shall not occupy the demised premises otherwise than as a millinery store, nor shall tl^ lessee assign this lease nor under-let the premises or any part thereof.” The son of the plaintiff, who was a conveyancer and acted as his agent, says in his examination in chief that at the time of. the execution of the lease “the question was raised whether the property was in good order, and the reply was that it was in good order, which it was at the time.” There is further corroboration of the plaintiffs’ contention in the fact that, although under the terms of the lease the lessee was bound to keep the demised premises in good condition during the continuance of the lease, the defendant invariably, after complaint as to the condition of the roof of the bulk windows, sent mechanics to make the repairs at his own expense. The evidence in regard to the character of the roof of the bulk windows is not uncertain. It was not new. On the other hand, it was in bad condition. After the plaintiffs removed from the premises, and before another tenant occupied them, a new roof was put upon them by defendant. The plaintiffs took possession of the premises January 1, 1894, and within that month their entire stock, displayed in the bulk windows, was destroyed by water coming through the window, caused as is alleged, by defects in the roof. The experiences of the first month of the plaintiffs’ tenancy were repeated on three or four other occasions, of which the details are given fully in the evidence. We think the evidence was sufficient to carry the case to the jury, without any relaxation of the rule as to the character of the proof necessary to establish such fraud as will change the legal effect of a written instrument. Was there error as to the manner in which this evidence was submitted to the jury? We think not. What we have said sufficiently disposes of the second and third assignments of error.

As to the first, fourth and fifth assignments, the appellant’s argument is that, inasmuch as the lease which he gave in evidence is signed by but one of the plaintiffs, there can be no recovery by them jointly. The reply to this is that the plaintiffs do not base their right to recover upon the lease. There is evidence that they carried on the business jointly; that both contributed to its capital and shared in the profits. The representations upon which they base their action for deceit were made to both of them. Both relied upon these representations, and jointly pursued the business which was carried on in consequence. We see no error, therefore, in the affirmance of the plaintiffs’ points and the disaffirmance of the defendant’s third and fourth points, as contained in the fourth and fifth assignments of error. Wolfe v. Arrott, 109 Pa. 478, although different in form and as to its facts, fully sustains the general principles herein set forth. We are not called upon to decide what the duty of the plaintiffs was, after the discovery of the deceit practised upon them by the defendant, nor whether there should be a recovery for damages sustained after such a discovery. The question was not raised in the court below, and is not raised in any way here, by any of the assignments of error. All questions raised in the court below upon which the trial judge was requested to pass were properly disposed of, and the judgment is, therefore, affirmed.

Smith, J., dissents.


author: Reeder, J.,

text:
    Bernard T. Brock and Paul T. Brown, Copartners, trading as J. W. Brown & Co., v. James A. McCaffrey, Frank J. McCaffrey and Henry L. McCaffrey, Copartners, trading as James A. McCaffrey & Sons, Appellants.

      Contract — Executory sale — Constructive delivery.

    In all executory contracts of sale title does not pass until delivery. If the goods contracted for were not then in existence, or not yet manufactured, or not yet selected out of a lot of similar articles, then the subject-matter of the contract is undefined, and remains so until there is some setting apart of the goods to the vendee’s order, as in the absence of actual delivery will constitute a legal delivery.

      Question for jury — Sale—Constructive delivery.

    B. contracted to sell M. an article he did not have, which he never had, and sought to recover therefor because of an alleged setting apart of the article by X. (with whom he [M.] had no contract) to his order. Held, That there was no evidence of constructive delivery to submit to the jury.
    Argued Oct. 15, 1896.
    Appeal, No. 114, Nov. T., 1896, by defendants, from judgment of C. P., No. 3, Phila. Co., March T., 1895, No. 270, on verdict for plaintiffs.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Assumpsit for goods sold. Before McMichael, J.
    The facts sufficiently appear in the opinion of the Superior Court.

      Errors assigned were, (1) in charging the jury as follows : “ There seems to be no contradiction in the testimony, as it is direct and to the very point of the case, especially the testimony that the goods were of a specific character, not only as to the quantity of the oil, but as to the marking of the bottles with the names of these defendants; and that the oil had been actually bottled, and the bottles had been marked; that twenty-five cases had been shipped and delivered, and the other seventy-five cases marked and ready for shipment, set apart, and not delivered because of the refusal of the defendants, the McCaffreys, to carry out their part of the contract, and take the goods; but it is for you to say whether the property passed from the seller to the buyer. The seller seems to have done all he could reasonably do, and if you believe that testimony, if you believe Mr. Brown’s account of the original agreement to be correct, and these depositions to be correct, you can, and should, find a verdict for the plaintiffs for the price agreed upon, which, I believe, there is no dispute about, amounting to §372.75.”
    (2) In refusing to affirm and charge the jury, without qualification, the defendants’ first point: “If the jury believe that the oil is not the property of the plaintiffs, but of some third person in France, or elsewhere, their verdict must be for the defendants.”
    (3) In charging the jury as follows : “The testimony was,— but it is for you, — -that the correspondents were the agents of the plaintiffs in France; that they represented the plaintiffs in France.”
    (4) In refusing to charge the jury; and affirm the defendants’ second point, as follows: “If the jury believe that no tender or delivery of the oil in question was made, their verdict should be for the defendants.”

      William M. Stewart, Jr., with him John Sparhawk, Jr., for appellants.
    There could not well be a better example of an executory contract, and it is horn-book law that in such cases title does not pass until delivery: Benjamin on Sales, sec. 352; Sneathen v. Grubbs, 88 Pa. 147; Winslow v. Leonard, 24 Pa. 14, quoted with approval by Rice, P. J., in Keeler v. Schott, 1 Pa. Superior Ct. 458; Jenner v. Smith, L. R., 4 C. P. 270.
    The measure of damages is the difference between the contract price and the market or current value of the goods at the time and place of delivery: Arnold v. Blabon, 147 Pa. 372; Fireworks Co. v. Polites, 130 Pa. 536; Keeler v. Schott, 1 Pa. Superior Ct. 458.

      A. W. Horton, for appellees.
    Benjamin on Sales, sec. 309* in speaking of contracts relating to the sale of chattels, says: “Both of these contracts (executed and executory) being equally legal and valid, it is obvious that whenever a dispute arises as to the true character of an agreement, the question is one rather of fact than of law.”
    The vendor of personal property, in a suit against the vendee for not taking and paying for the property, has the choice ordinarily of any one of three methods to indemnify himself, citing in support: 2 Sedgwick on Damages, sec. 753, citing Dustan v. McAndrew, 44 N. Y. 72; Shawhan v. Van Nest, 25 Ohio, 490; Goddard v. Binney, 115 Mass. 450; Ballentine v. Robinson, 46 Pa. 177; Com. v. Fleming, 130 Pa. 138.
    January 18, 1897 :
   Opinion by

Reeder, J.,

The plaintiffs are wholesale grocers, importers, among other things of French table delicacies — oils and olives. They obtained from the defendants a contract for one hundred cases of olive oil. Twenty-five cases were shipped and delivered to the defendants, for which they paid. Seventy-five cases were never actually delivered to the defendants, and never paid for by them. This suit is brought to recover for those seventy-five cases which were never actually received by the defendants, and which the plaintiffs claim were set apart to their order, and never paid for, the amount of the claim being $372.

The goods were to be packed in France by Talbot Brothers, of Bordeaux, France, and were to be shipped in 25-case lots, in reasonable time, as ordered by the defendants. They were packed in bottles, with the name of “ McCaffrey & Sons ” blown in the glass. At the time of the trial, they were still at Bordeaux in the possession of Talbot Brothers, and had never been shipped to the plaintiffs, by whom they were sold to the defendants, but are held by Talbot Brothers, to be shipped whenever ordered to do so by the plaintiffs, the firm of J. W. Brown.

Was this such constructive delivery of the goods as would ¡entitle the plaintiffs to recover in this action ? There is'no principle of law more thoroughly settled than that, in all executory contracts of sale, title does not pass until delivery. If the goods contracted for were not then in existence, or not yet manufactured, or not yet selected out of a lot of similar articles, then the subject-matter of the contract is undefined, and remains so until there is some setting apart of the goods to the vendees’ order, as in the absence of actual delivery will constitute a legal delivery to them. This contract was not a contract to which Talbot Brothers were ever a party. It was a contract on the part of the plaintiffs to sell to the defendants an article which they did not have, which they never yet have had, and yet which they seek to recover for because of a setting apart by a third party (with whom the defendants had no contract) to the plaintiffs’ order.

There is no case to be found in the books which will make this a constructive delivery of the goods to the vendees so as to entitle the vendors to recover their value. Unless this property passed in some way from the plaintiffs to the defendants, there could be no recovery in this action. Talbot Brothers were no party to this sale. The contract of sale as testified to was between the plaintiffs and the defendants. The only evidence in this case discloses that-the goods may have been set apart to the order of the plaintiffs. There is no evidence that they were set apart to the defendants so as to warrant the submission of that fact to the jury by the court below.

The plaintiffs might be entitled to recover from the defendants upon this state of facts for whatever injury had been sustained by them by reason of the defendants’ failure to comply with the contract of sale and their refusal to receive the oil. As the pleadings were not printed in the paper-books submitted to us, we are not prepared to say whether they were entitled to so recover in this case or not. They are certainly not entitled to recover the full amount of the value of the oil upon the theory upon which the case was tried and submitted to the jury in the court below.

The first, second, third and fourth assignments of error inust, therefore, be sustained. Judgment reversed and a venire facias de novo awarded.


text:
    In re assigned estate of Jesse Wetzler. Appeal of F. S. Groff.

      Assigned estate — Judgments—Prior execution — Distribution.
    It is the status of a claim at the time of an assignment for benefit of creditors that determines the amount due thereon, but where a claim has been reduced to judgment and execution has issued thereon and levy been made, before the date of the assignment, there is a pro tanto satisfaction of so much of the judgment as was made on the execution. It follows,’ therefore, that the creditor can only claim a dividend on the balance due after such deduction, and not on the face of the claim.
    Argued Nov. 14, 1896.
    Appeal, No. 148, Nov. T., 1896, by F. S. Groff, a lien creditor, from decree of C. P. Lancaster Co., Trust Book 14, p. 213, on a case stated, in tbe matter of the distribution of the balance in the hands of F. S. Groff, assignee of Jesse Wetzler.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Exceptions to assignee’s account. Before Brubaker, P. J.
    The question arises on the distribution of a fund created by the sale of assignee’s real estate.
    The facts agreed upon in a case stated are sufficiently indicated in the opinion of the Superior Court.

      Errors assigned were, (1, 2) in directing that the balance in the hands of the accountant should be distributed in the proportion of $690.36, balance of Groff’s judgment as reduced by proceeds of personal property made on execution, and $5,000 of Lemmon’s judgment.

      J. Hay Brown, with him W. U. Hensel, for appellant.
    The question involved here upon identical facts was considered and passed upon in the common pleas of Monroe county in an opinion by Dreher, P. J., reported in 5 C. C. R. 159.
    The same principle was applied in Brough’s Est., 71 Pa. 460; Graeff’s App. 79 Pa. 146, and Bair & Shenk’s App., 82 Pa. 113.
    “ A creditor is entitled to a dividend under an assignment, not merely as a creditor, but as an equitable owner of the assigned estate, and the extent of his ownership is fixed by the amount of his claim when the assignment was made:” Dean’s Appeal, 98 Pa. 101; Appeal of Jordan & Porter, 107 Pa. 75; Trickett on Assignments, Sec. 185 p. 208.

      George Nauman, for appellee.
    It was at first held that a levy followed by a release of the goods seized was payment: Hunt v. Breading, 12 S. & R. 37, the court saying, page 41:
    “ But the cause is clearly with the defendant on another ground. Seizing goods in execution to the value of the debt is a discharge of all -responsibility on the part of the debtor, and consequently a discharge of the judgment, and this whether the goods be sold or not, all further remedy being against the sheriff, who becomes exclusively liable by the seizure: Clerk v. Withers, 1 Salk, 323; Mountney v. Andrews, Cro. Eliz. 235; Slie v. Finch, 2 Roll. Rep. 57; Cockrant v. Welby, 2 Show, 79; Speake v. Richards, Hob. 206; 4 Mod. 404.”
    Tbe sum of the matter, therefore, appears to be this: Where the goods are actually seized the property vests in the sheriff, and the debt becomes satisfied as to the judgment creditor, who can look only to the sheriff, unless where the latter chooses to return nulla lona, and then he becomes answerable to the judgment creditor for his false return, who may also levy the same goods on another execution: Dean v. Patton, 13 S. & R. 341; Taylor’s Appeal, 1 Pa. 390.
    According to Little v. Delancey, 5 Binney, 272, and Beale v. Worrell, 11 S. & R. 299, a levy is satisfaction so far as it has or might have produced it. Lyon v. Hampton, 20 Pa. 46; Hunt v. Breading, 12 S. & R. 37; Duncan v. Harris, 17 S. & R. 436.
    January 18, 1897:
   Opinion by

Reeder, J.,

This question arises upon the distribution of a fund created by the sale of Wetzler’s real estate. The facts were agreed upon.

William Lemmon held a judgment against Jesse Wetzler in the sum of $5,000, and Isaac Ramsey held a judgment against the same defendant for $975, the lien of the judgments upon the real estate of the defendant being of the same date. On November 30, 1892, Isaac Ramsey issued a writ of fi. fa. on • his judgment, and on this writ the sheriff of Lancaster county levied on the personal property of Jesse Wetzler on December 1,1892. Prior to the sale of the personal property by the sheriff, and after the levy, Jesse Wetzler made an-assignment of all his estate for the benefit of creditors to F. S. Groff, on December 6,1892, the sale being advertised to take place on the 8th of December, 1892. The day before the sale, namely, December 7th, Isaac Ramsey assigned his judgment to the said F. S. Groff, the assignee. Groff then made an arrangement with the sheriff that he (Groff), should sell the personal property of the said Jesse Wetzler which was levied upon, and apply the proceeds to the payment of the execution; and, under this' arrangement, he sold the same and realized the sum of $284.64. The real estate was then sold, and the balance in his hands, amounting to $4,169.15, is still in his hands.

The only two lien creditors who are entitled to distribution of this fund are William Lemmon and Groff, who held the assigned judgment given by Wetzler to Isaac Ramsey. Groff, as the holder of the Ramsey judgment, claims a dividend on the full amount of $975. Lemmon claims that the amount' realized by the sale of the personal property, $284.64, should be first credited upon Groff’s judgment, and distribution should be made upon the balance, namely $690.36.

It was said, in Miller’s Appeal, 35 Pa. 481, that “ a creditor is entitled to a dividend under an assignment, not merely as a creditor, but as an equitable owner of an assigned estate, to the extent of his ownership as fixed by the amount of the claim when the assignment is made.” This levy was made on the Ramsey judgment six days before the date of the assignment for the benefit of creditors. The levy was a lien upon the personal property at the time that it passed into the hands of the assignee. If the money had been made by a sale by the sheriff, it would have been credited upon the judgment on the docket, and the judgment would have stood as a lien against the real estate for the balance of the judgment still unpaid. The levy having been made prior to the assignment, the property was in the sheriff’s hands, under Ms absolute control to such an extent that it would have been larceny for the defendant in the execution to have extracted any portion of it from his custody. It, therefore, did not pass to the assignee by reason of the assignment; and, had the sale been made by the sheriff after the assignment, it would have been credited upon the judgment just as fully as though the sale had been made prior to the assignment. That the sheriff did not so sell, but, by reason of a private arrangement between Groff as assignee and the sheriff, it was sold by him, did not alter the manner of the appropriation of this money, and the court below, therefore, very properly directed that it should be treated as a credit upon the Ramsey judgment, and that distribution should only be allowed for the balance, namely, $690.36, instead of the whole amount of the claim. It was a satisfaction of so much of the judgment as was made on the execution. The goods levied upon did not pass by, being in the sheriff’s custody at the time of, the assignment for the benefit of creditors.

We do not think that Miller’s Appeal, 35 Pa. 481, and Patton’s Appeal, 45 Pa. 151, relied upon by the appellants in this case, are in conflict with this decision. The principle there decided is clearly distinguishable from that which arises in the consideration of the present case. They decide that the right of the creditors upon the distribution of the fund of an assigned estate must be determined by the status of the claim at the time of the assignment; that, after the assignment, if the creditor obtains partial payment of his claim by execution process issued against property that did not pass by the assignment, he is entitled to distribution upon the whole of the amount of his claim; that, where a creditor is obliged to pay the entire amount of a debt due from him and a cosurety, in the distribution of his cosurety’s estate he is entitled to a distribution for the whole amount of his claim; that, where part of goods sold had been delivered and other goods were detained and sold by the vendors who applied the proceeds of-the goods thus sold to the payment of the notes given upon the sale, leaving a balance still due, the vendors are e2ititled to a dividend upon the whole amount of their claim as it existed at the date of the assignment. The decision in neither of these cases applies to the ease now under consideration. This case is clearly distinguishable fro2n them.

Judgment is, therefore, affirmed.


text:
    Joseph M. Shenk v. Anna Hacker and Emerick L. Hacker, Appellants.

      Rules of court — Interpretation by the court itself.

    As a general rule the construction of their own rules by the lower courts will be accepted by the appellate court.

      Judgment by default — Rule to open — Rule of court.

    A rule of court provided that judgment entered for want of an appearance may be opened within the same term on application supported by affidavit of a just and legal defense to the demand of the plaintiff. The defendant setting forth by petition that default to a sci. fa. sur mortgage was due to illness, and that she had a just and legal defense, the court granted a rule, which, upon depositions taken it discharged, the testimony not establishing fraud, duress or mistake. The defendant claimed that under the rule of court he had the right to have the judgment opened on his bare petition and affidavit.
    Argued Nov. 12, 1896.
    Appeal, No. 83, Nov. T., 1896, by defendants, from order of C. P. Lancaster Co., Oct. T., 1895, No. 78, discharging rule to open judgment.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Rule to open judgment for want of appearance.
    Judgment was entered in favor of plaintiff and against defendants on a fi. fa. sur mortgage for 1438.48. The court subsequently granted a rule to show cause why judgment should not be opened, which it afterwards upon hearing depositions discharged.
    The practice was governed by rule of court of Lancaster county which is set out in the opinion of the Superior Court.
    Defendants appealed.

      Errors assigned were, (1-3) refusing to open the judgment.

      Wm. R. Wilson, for appellants.
    Under the rule of court the defendants had an absolute right to have the judgment opened upon compliance with the rule of court. It is contended, moreover, that the defendants .had a good defense on the merits as disclosed by the petition and deposition. The case at bar is stronger than Schrader v. Decker, 9 Pa. 14; Cridge v. Hare, 98 Pa. 561; Furniture Co. v. School District, 130 Pa. 94.

      But a written agreement may be modified, explained, reformed, or altogether set aside by parol evidence of an oral promise, or undertaking, material to the subject-matter of the contract, made by one of the parties, at the time of the execution of the writing, and which induced the other to put his name to it: Walker v. Frame, 112 Pa. 203 ; Cullmans v. Lindsay, 114 Pa. 170; Ferguson v. Rafferty, 128 Pa. 337.

      Thomas H. Capp and A. J. Eberly, with them Wm. J. Eberly, for appellee.
    That a wife may mortgage her estate for her husband’s benefit, or to secure her husband’s existing debts and future indebtedness is no longer an open question in Pennsylvania: Haffey v. Carey, 73 Pa. 431; Cridge v. Hare, 98 Pa. 561; Oppenheimer v. Wright, 106 Pa. 569; Du Bois Deposit Bank v. Kuntz, 175 Pa. 432.
    The evidence is not contradicted as to the fact that Mrs. Hacker knew exactly what she was doing, and therefore there was nothing in this case which entitled it to go to a jury: Oppenheimer v. Wright, 106 Pa. 569; Heilman v. Kroh, 155 Pa. 1; Bank v. Kuntz, 175 Pa. 432. As to construction of rules of court, see Bank v. Henning, 171 Pa. 399.
    January 18, 1897 :
   Opinion by

Reeder, J.,

The only question raised by these assignments of error is the construction of the rule of court adopted in Lancaster county, which provides that, where judgment has been entered for want of an appearance, “ such judgment may be opened within the same term on application supported by an affidavit of a just and legal defense to the demand of the plaintiff.”

.Judgment was entered in. .this case for want of an appearance . to a writ of scire facias upon what was considered by the court below, and treated by the parties, as a mortgage for the purpose of securing a sum of money loaned to Emerick L. Hacker, the husband of Anna Hacker, upon real estate owned by Anna Hacker.

The petition sets forth that her default was due to the fact that she was sick in bed, and that she has a just and legal defense to the demand of the plaintiff.

Upon this petition the court granted a rule to show cause why'the judgment should not be opened and the defendants let into their defense. Depositions were taken upon this rule, which were submitted to the court at the time of the return, and the court discharged the rule because “the defendants had failed to set forth a just and legal defense to the present action, as required by the rules of court.”

The appellants in this case claim that, under the 'proper interpretation of the rule of court, they were entitled to have the judgment opened and to be let into their appearance, upon an ex parte statement that they had a true, just and legal defense, without setting forth, either in their petition, or in affidavits, or in depositions, what that defense constituted.

We do not think that this is a proper interpretation of the rule of court. As a general rule, the construction of their own rules by other courts will be accepted: Bank v. Henning, 171 Pa. 399.

In this case, however, even though we should refuse to accept the court’s interpretation of its own rule, and should interpret the rule for ourselves, our interpretation of the rule would be in accord with that of the court below. A proper construction of this rule of court requires not only that the petitioners should assert that they had a true, full and just defense to the plaintiff’s action, but should satisfy the court of the fact that they had such defense. In all other courts in the state with which we are familiar, where such rules exist, that has always been, so far as our knowledge and observation goes, the interpretation put upon such rule by the courts. And the reason of it is obvious. It would be useless to postpone execution of process where judgment has been entered by default unless it would serve some good purpose in opening the judgment and permitting the defendant to enter an appearance. Such good purpose would not be served unless the court was satisfied that, if the judgment were opened and entry of appearance permitted, the defendant would be able to assert some defense which would avail him in defeating the action, if he could properly support it with proof.

We think that, in the interpretation of this rule, the court went further than the appellants were entitled to have them go. The court could properly have refused to enter a rule to show cause why the judgment should not be opened, because the petition did not itself set forth a just and legal defense to the action; but, having accepted and considered the depositions taken in support of the rule, the court very properly left the judgment undisturbed and discharged the rule.

The testimony taken in support of the appellant’s petition was entirely inadequate to support the rule asked for. It does not establish duress, fraud, misrepresentation or mistake. At most, it shows that at the time Anna Hacker signed the instrument upon which this writ was issued, she declared in the presence of the notary, that she signed the paper on condition that her husband would pay it and not herself ; that she signed it without any coercion or compulsion upon the part of her husband, as is set forth in the acknowledgment, the written instrument, that she had been sick with'typhoid fever for six months and was not strong in mind or body at the time she executed it, although she “was better.” This testimony, it is clearly apparent, is insufficient to move the discretion of the court in this matter. She simply allowed herself to be persuaded, upon her husband’s promise to pay the debt, to give this security for it.

We see no error in the action of the court below in discharging this rule. The judgment is, therefore, affirmed.


author: Rice, P. J.,

text:
    Frank F. Brightly v. George McAleer, Appellant.
    Practice, C. P. — Affidavit of defense — Sufficiency.
    An affidavit is in proper form which, averring defense to an alleged contract, instead of denying in general terms the existence of such contract, states the facts and leaves the court to judge of their legal effect. Such method avoids the fault so frequently condemned of merely swearing to a conclusion of law and does not disclose the other error of loading down the affidavit with mere recitals of evidence.

      Attorney at law — Contingent fee — Discharge of counsel — Measure of compensation.

    An agreement to conduct an application for a license on a contingent fee upon which plaintiff undertook the case but afterward solicited and received $100 on account and demanded additional moneys does not present a condition where the discharge of counsel had-passed beyond defendants control. The most that counsel could recover was reasonable compensation rendered prior to the time when he was discharged.
    • Contract — Denial of compromise agreement — Question for jury.

      . . Where the cause turns upon the question as to whether a compromise agreement in settlement of a disputed claim had been formulated and conducted to a meeting of minds so as to be equally binding upon both parties and the facts alleged by the affidavit negatived such conclusion, the defendant was entitled to have the case submitted to a jury.

      Contract — Consideration—Compromise of disputed claim.

    A contract made in compromise and settlement of a disputed claim is binding.
    Argued Oct. 20, 1896.
    Appeal, No. 32, Nov. T., 1896, by-defendant, from judgment of C. P. No. 1, Pbila. Co., June T., 1895, No. 751, in favor of plaintiff for want of a sufficient affidavit of defense.
    Before Rice, P. J., Willard, Wickham, Beaver, Orlady and Smith, JJ.
    Reversed.
    Assumpsit on special contract.
    The plaintiff claimed $250 as due him by the defendant under a special contract in consideration of services as attorney at law.
    The affidavit of defense was as follows:
    George McAleer, the defendant in the above entitled cause, being duly sworn, deposes and says:
    That he is advised and believes that he has a just and true defense to the whole of the plaintiff’s claim of the following nature:
    On or about February 6, 1895, deponent engaged Frank F. Brightly, Esq., the plaintiff in the above entitled case, and .Joseph D. Ford, Esq., to apply for a retail liquor license for him to sell malt and spirituous liquor at premises 1420 Columbia avenue, and agreed them to pay a fee of $1,000 contingent upon success. Afterwards, at their solicitation, this deponent paid the plaintiff and Joseph D. Ford $100 on account. Subsequently they wrote to this deponent to come down to Mr. Brightly’s office on particular business and thereupon .they demanded of him additional money, whereupon this deponent expressed dissatisfaction with their conduct and notified them that he intended to go elsewhere for counsel, which he after-wards did. Thereafter, this deponent called upon the plaintiff to get his papers and inquired of him how much would settle any claim for services that he might have, to which the plaintiff replied $500. Deponent answered “ wouldn’t half that sum be sufficient,” to which the plaintiff replied, “ well, anything at all you like.” Whereupon plaintiff asked deponent to go upstairs to his office, the interview having taken place on the steps of the building in which the plaintiff’s office was. To this, deponent replied that he had an engagement and could not go with him, whereupon plaintiff then said, “ license or no license ? ” to which this deponent replied, “ all right.” Whereupon the interview ended and deponent went away without having made any promise or engagement other than such as may be inferred from the above conversation.
    This deponent is further advised and believes, that as the services, if any, in consideration of which this claim is made, were performed by the plaintiff before the date of this conversation which took place upon the 24th of April, 1895, as alleged in the plaintiff’s statement, and as under the original contract, the fee was contingent upon success, and as the license for which the plaintiff was engaged to apply was refused, no liability can arise therefrom.
    All of which this deponent believes to be true and expects to be able to prove at the trial of this cause.
    The court entered judgment for want of a sufficient affidavit of defense. Defendant appealed.

      Errors assigned were entering judgment for want of a sufficient affidavit of defense.

      Howard W. Page of Page, Allinson Penrose, for appellant.
    —As to the question of the right of plaintiff to recover on a contingent fee such- as is disclosed by the affidavit of defense, he must have been 'able to show that he would have been successful: Western Union Telegraph Co. v. Semmes, 73 Md. 9.

      F. F. Brightly, P. P., for appellee.
    February 16, 1897:
   Opinion by

Rice, P. J.,

The cause of action set forth in the plaintiff’s statement arose out of a special contract of the defendant to pay him $250 in full for and in consideration of his services as an attorney'at law rendered to the defendant prior to the date of the contract in the matter of the defendant’s application for a retail liquor license and in the matter of the defendant’s remonstrance against another application. The defendant, instead qf denying in general terms the existence of such a contract, stated the facts and left the court to judge of their legal effect. In so doing.he avoided the fault, which has been so frequently-condemned, of merely swearing to his conclusions of law. Nor did he commit the other error of loading down his affidavit with mere recitals of evidence, instead of stating the facts. He alleges that he engaged the plaintiff and' another member of the bar to apply for a retail liquor license, and agreed to pay them a fee of $1,000 contingent upon success; that afterwards, at their solicitation, he paid them $100 on account; that still later they demanded of him additional money; whereupon he expressed dissatisfaction with their conduct, and notified them that he would engage other counsel, which he afterwards did. We make no comment on the character of the contract. For present purposes it is assumed that it was valid; but there was nothing in its terms which interfered with the defendant’s control of the proceeding, or with his right to discharge his attorneys and to employ another. And if their right to recover were to be determined by the result, they would be entitled to recover nothing, because the license was refused. They certainly would not have been entitled to recover the whol.e fee, without showing that if they had been retained they would have succeeded in obtaining the license; and, as from the very nature of the case it would have been impossible for them to show that, the most that they could have recovered was reasonable compensation for services rendered prior to the time when they were discharged.

A similar question was very fully and ably discussed in the case cited by appellant’s counsel (Western Union Tel. Co. v. Seemes, 73 Md. 9), and the distinction was clearly pointed out between such a contract and a contract to build a house or to do other work which the plaintiff is prevented by the defendant from completing. This then was the condition of affairs at the time the contract alleged in the statement was entered into. The plaintiff had a claim for reasonable compensation for services theretofore rendered for the defendant at the latter’s request. It is argued that a past consideration is, in effect, no consideration at all; that is to say, it confers no benefit on the promisor, and involves no detriment to the promisee in respect of his promise; therefore, as it appears from the plaintiff’s statement that the consideration upon which the alleged promise to pay |250 was based, was past and executed, the plaintiff has failed to set up a good cause of action. In Cunningham v. Garvin, 10 Pa. 366 it was said: “Now though anciently this (‘a past consideration flowing from a benefit conferred ’) was thought inadequate to support a promise to pay, it has long been settled that a benefit derived from the unsolicited services of another, creates a moral obligation of sufficient potency to sustain an express promise.” In support of this proposition the court cited Greeves v. McAllister, 2 Bin. 591; Clark v. Herring, 5 Bin. 33; Nesmith v. Drum, 8 W. & S. 9. So in Albany City Ins. Co. v. Whitney, 70 Pa. 248, Mr. Justice Shabswood said: “ But a benefit conferred or services rendered, though purely voluntary, is sufficient consideration to support an express promise.” In Paul v. Stackhouse, 38 Pa. 302, Mr. Justice Woodwabd said: “It is true as a general rule, that the consideration which binds a surety must be executory; but where the thing was done at the instance or request of the surety a past consideration binds him.” He also quotes with approval the rule as stated in Pitman on Principal and Surety, that where the act was done at the request of the party promising, the promise is not a naked one, but couples itself with the precedent request, and is, therefore, founded on a good consideration. It would seem, without further citation of authorities, that the doctrine as to past consideration, as broadly asserted by the defendant’s counsel, has not been adopted unqualifiedly in this commonwealth. But be that as it may, according to the defendant’s own showing the principle contended for-by him is not applicable to the contract in suit, if one was made.

While in general it is true that a mere agreement to accept a smaller sum in discharge of a larger, is not binding for want of consideration, yet a contract made in compromise and settlement of a disputed and doubtful claim is binding. It relies for its support not on a past consideration alone, but on a present benefit. The plaintiff, being asked what he would take in settlement of his claim for past services, demanded $50Q. The defendant was unwilling to admit that he was entitled to so much. Here was a dispute, not as to the defendant’s liability, but as to the amount. It could only be settled by agreement or by litigation, and certainly there is no hard and fast rule of law which drove them to the latter method. If, in settlement and compromise of this disputed and unliquidated claim, the defendant offered to pay $250, and the plaintiff accepted the offer, the contract was binding on both parties. But was there such a contract ? This question is to be decided on the averments of fact contained in the affidavit of defense, which, for present purposes, we must assume contain the whole truth regarding the negotiations. The plaintiff having stated that he would take $500 in settlement, the defendant asked, “ wouldn’t half that sum be sufficient ? ” This was not an offer to pay $250, and if the plaintiff had given an affirmative answer the defendant would still have been at liberty to accept or decline the new proposition; for that, in reality, was what it would have been. But the plaintiff did not see fit to offer to take $250, but replied, “ well anything at all you like.” Inasmuch as the defendant had not expressed a willingness to pay any definite sum, much less $250, this reply cannot be construed as an acceptance of a proposition to pay that sum. The plaintiff’s next question, “ License or no license ? ” indicated that he did not propose to leave the terms of the settlement wholly to the discretion of the defendant, and when the latter replied “ all right ” the plaintiff made no reply. As we construe this loose and disjointed conversation, which the defendant alleges was all that was had, it shows negotiations for a settlement and compromise of the plaintiff’s claim for the past services, but not an offer accepted, binding both parties — the defendant to pay $250, and the plaintiff to relinquish any claim for a greater sum. If both were not bound, neither was. We are of opinion that upon the facts averred in the affidavit of defense the defendant was entitled to have the case submitted to a jury.

Judgment is reversed and a procedendo awarded-


text:
    Samuel W. Showalter, committee of the person and estate of Edward S. Eaby, a lunatic, v. The Mutual Fire Insurance Company of Chester county, Appellant.

      Insurance — All risks of loss save e%cepted risks are covered by the policy.

      A policy of insurance covers .all risks of loss or damage by fire, save only such as are excepted by the terms of the policy and such as are caused by the voluntary act, assent, procurement or design of the assured himself.

      Fire insurance — Loss by act of insane assured.

    If not expressly provided otherwise, a policy covers loss by fire occasioned by the negligent or insane act of the insured.
    Argued Nov. 18, 1896.
    Appeal, No. 75, Nov. T., 1896, by defendant, from judgment of C. P. Chester Co., Aug. T., 1895, No. 102, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Assumpsit on policy of insurance. Before Waddell, P. J.
    A barn belonging to Edward S. Eaby and Mary S. Richwine, insured in the defendant company was destroyed by fire. Edward S. Eaby, one of the owners, was arrested on the charge of arson, and on the trial the jury found that the defendant was insane at the time of the crime, and acquitted him on the ground of insanity.
    By proceedings in lunacy Samuel W. Showalter was appointed a committee in lunacy for the said Edward S. Eaby and brought suit to recover for the lunatic’s interest in the policy.
    There was evidence tending to show that the barn was burned by the wilful conduct of the said Eaby. The court directed a verdict for the plaintiff.
    Verdict for plaintiff $606.62 and 6 cents costs. Defendant appealed.

      Errors assigned were (1) affirmance of plaintiff’s first point which point was as follows: Even if the jury believe that Edward S. Eaby burned tbe barn in question, if they also believe that he was a lunatic at the time of the burning, the verdict must be for the plaintiff for the amount of the insurance; (2) in affirming plaintiff's second point, which was to the same effect; (3) in giving binding instructions for the plaintiff.

      Arthur T. Parke, with him Thomas W. Pierce, for appellant.

      J. Carroll Hayes, with him Wm. M. Hayes, for appellee.
    February 16, 1897 :
   Opinion by

Rice, P. J.,

The questions of law raised in this and the next succeeding case post p. 452, do not appear to have been decided by the Supreme Court of our state, at least not in the precise form in which they are now presented. The question in this case is, whether it is a defense to an action on a fire insurance policy to allege and prove that the building was burned by the insured while insane. The position of the defendant’s counsel is well stated in their own language thus: “ The law will read into every contract of fire insurance, an undertaking that the assured will observe the ordinary legal duty of good faith towards the insurer, and his neglect of that duty would be a tort founded upon contract. The legal duty which the insurance contract imposed upon the assured in this case was that he should not himself destroy by fire the property insured; for such destruction would be a wrong committed by himself upon the insurer.” If such a provision had been expressly included in the contract there would still be room for argument that the parties contemplated only an intentional destruction of the building by the insured. But while the insurance company was careful to specify in great detail the circumstances under which the policy should become void, and also the circumstances under which it should not be liable for loss, the destruction of the building by the insured was not one of them. Nor was it necessary to stipulate that the company should not be liable for the wilful destruction of the building by the insured. The parties are presumed to have contracted with reference to the principles of natural justice and well settled law, which forbid a man to avail himself of his own turpitude in a suit, or to contract for indemnity against his own fraud. The contract of fire insurance is a contract of indemnity against loss by fire, and the direct burning of tire building by the wilful act of the insured is not one of the risks within the contemplation of the parties to the contract. But it is equally well settled that mere carelessness and negligence of the insured, or his tenants or servants, not amounting to fraud, though the direct cause of the fire are.covered by the policy, unless specially excepted. “Indeed,” says a learned writer, “ one of the principal objects of insuring against fire is to guard against the negligence of servants and others; and therefore, while it may be said generally that no one can recover compensation for an injury which is the result of his own negligence or want of care, the contract of insurance is excepted out of the general, rule. Nor does it make any difference whether the negligence is that of the insured himself or of others. The law looks only at the proximate cause of the loss: ” May on Insurance, sec. 408 (ed. of 1873).

This doctrine is sustained by a long line of decisions, among which are our cases : Am. Ins. Co. v. Insley, 7 Pa. 223; Phœnix Fire Ins. Co. v. Cochran, 51 Pa. 143 ; Cumberland Valley Mutual Prot. Co. v. Douglas, 58 Pa. 419; Lebanon Ins. Co. v. Kepler, 106. Pa. 28. Stating the argument of the defendant’s counsel in a little different form it may be summarized thus : There is an implied undertaking on the part of the assured to observe good faith toward the insurer; for the insured to burn his own building is a breach of that duty, and a fraud upon the insurer; to permit him to recover for a loss occasioned by his own wrongful act would be in violation of an implied condition of the policy. The fallacy of this argument consists in assuming that what would be a fraudulent act if committed by a sane person is so in a person incapable of fraudulent intent and of resisting insane impulse. When an insane person burns his own building, what legal wrong does he commit? Certainly none for which he is punishable criminally, and none for whicli he is responsible civilly unless it be a breach of duty arising out of contract. But as well might you say that negligence of the insured is a breach of duty owed to the insurer as that an insane act is. No rule or principle of public policy forbids one to covenant for indemnity against loss by fire consequent upon either; and why a condition should be implied excepting one, and not the other, from the risk is not plain. The general rule is that a fire policy covers all risks of loss or damage by fire, save only such as are excepted by the terms of the policy and such as are caused by the voluntary act, assent, procurement or design of the assured himself.' In this respect the law of fire insurance seems to be in harmony with the law of life insurance. In Connecticut Mutual Life Ins. Co. v. Groom, 86 Pa. 92, it was said that the rule as to death by suicide adopted by Willard, J., in Breasted v. Farmers’ Loan Co., 8 N. Y. 299, was a safe and just one. “ It must occur to every prudent man seeking to make provision for his family by an insurance on his life, that insanity is one of the diseases that may terminate his being. It is said the defendants did not insure the continuance of the intestate’s reason. Nor did they, in terms, insure him against smallpox or scarlet fever; but had he died of either disease, there is no doubt that the defendants would have been liable. They insured the continuance of his life. What difference can'it make to them or to him whether it is terminated by the ordinary course of disease in his bed, or, in a fit of delirum he ends himself ? In each ease the death is occasioned by a means within the meaning of the policy, if the exception contemplates,'as I think it does, the destruction of life by a rational agent,'responsible for his act.” But as in life insurance, if not expressly provided otherwise, the policy covers death by suicide when insane, so also for similiar reasons, loss by fire occasioned by the negligent or insane act of the insured is one of the risks assumed, unless expressly excepted. To imply such an exception would be to decide that the parties must be presumed, upon grounds of public policy or natural justice or equity, not to have C0A enanted for indemnity against loss from such a cause. There is no such legal presumption, because there is no natural or reasonable ground upon which it can be based.

Much stress was laid in the argument on the law relative to the civil liability of insane persons for their torts. As will be shown in the next case post p. 452, a man may be held civilly liable for his torts although he may be criminally and morally irresponsible. But this liability arises out of considerations which deprive the legal principle of all applicability to the present question. The argument is based on the assumption that the act of burning the building was a wrong to the insurer. But this begs the whole question. It was not a wrong in law if it was one of the risks which the insurer assumed. We cannot state the governing principle better than by quoting from the opinion of the court in Karow v. Continental Life Ins. Co., 57 Wis. 56: “ Since burning through the negligence of an insured who is sane (Joes not relieve the company from liability, for a much stronger reason the same act by one incapable of care would not. . . . The act of burning one’s own property does not necessarily injure an insurance company. Whether it does or not depends upon whether the company has, for the time being, assumed the risk of such burning. It is because the company, for a consideration paid, has, for the time being, assumed the risk of burning and hence, relieved the owner from such risk, that the liability continues, even where the burning is by the assured’s own negligence or that of 'his agents or servants. Such policy covers all risks of loss from fire not excepted therefrom, nor effected by the intent, design or procurement of the assured. Such being the risk which the defendant here by its contract expressly assumed, it cannot be relieved therefrom merely because the assured burned the property, if it is made to appear that at the time of such burning the assured was incapable of forming a design or intention to injure.” See also Hoyt v. Phœnix Ins. Co. 127 N. Y. 656; Williams v. Hays, 143 N. Y. 442.

Judgment affirmed.