Seltzer v. Brundage 2 Monag. 426

Seltzer v. Brundage, Executrix.

In an action of assumpsit to recover the amount of a promissory note and other alleged indebtedness, the evidence tended to establish the following facts : Plaintiff and defendant had been partners, with another, in the printing business. In 1879, plaintiff filed a bill in equity against the defendant for an account. On May 5, 1880, this equity suit was compromised, and the note in suit given. At the same time, a release was given by the plaintiff to the defendant, releasing the defendant from all claims on account of the partnership, but not to include unpaid accounts, interest in printing office, etc. On Nov. 3, 1880, the partnership between plaintiff and defendant was dissolved. The note in suit was subsequently paid but not surrendered. In this action the plaintiff offered evidence to prove that the defendant agreed to consider the payments on the note appropriated to another debt, and that the indebtedness of the note should stand. The court charged that the jury were to determine whether there was an agreement made between the parties that the note was to stand for another debt than the one for which it was originally given, and, in order to determine that, they should determine whether there was another debt. The jury found for the defendant. On writ of error, the defendant contended that the error, if any, was an immaterial error, as the question involved was whether there was a consideration to support the promise, and it was unimportant whether the note represented its own or another indebtedness, if another indebtedness existed, and this was properly submitted by the court. The judgment was affirmed by the supreme court.

The testimony of witnesses, given in evidence, as to the reasons which led to the settlement of the equity suit, was held to be no cause for reversal of the judgment in this case, although it involved declarations, made in the absence of the plaintiff, by the defendant, who had died before this suit was brought.

The release offered in evidence, in such case, is no cause for reversal.

Feb. 20, 1889.

Error, No. 273, Jan. T., 1889, to C. P. Lebanon Co., to review a judgment on a verdict for plaintiff in an action of assumpsit, by John C. Seltzer, against Ellen M. Brundage, executrix of John Young, deceased, at April T., 1886, No. 115. Sterrett and Mitchell, JJ., absent.

This was an action of assumpsit, brought March 12, 1886. The declaration, which was filed with a copy of the note upon which suit was brought, was not printed in the paper-books. It is *427stated in the paper-books that the plaintiff declared upon the note and on the common counts; and, by amendment, upon an alleged subsequent promise, and the account. The pleas were non assumpsit, payment, payment with leave, etc., and set-off and set-off with leave, etc.

The evidence was to the following effect, at the trial, before SlMONXON, P. J.:

The note, upon which suit was brought, was as follows:

“Lebanon, Pa., May 5, 1880.

“On the first day of April, 1881, I promise to pay to John C. Seltzer, in accordance to a release in settlement of accounts to this date, twenty-five hundred dollars, with interest of four per cent, per annum from this date.

“ ,$2500. “ John Young.”

In 1879, and previous thereto, John Young and John C. Seltzer, in connection with others, were engaged in printing and publishing a weekly paper. In 1879, Seltzer filed a bill in equity against Young for an account. On May 5, 1880, this equity suit was compromised and the note in suit was given. On the same day, Seltzer executed the following release:

“ Whereas, John Young and John C. Seltzer, together, and occasionally in connection with other persons, have heretofore been and are now associated together as co-partners in the printing and publishing of a German newspaper, doing press work and the like, in the borough of Lebanon.' And John C. Seltzer, claiming that, on account thereof, a large sum of money was due to him by the said John Young, who has been an active member of said firm, and received a large share of its proceeds and income, has filed a bill on the equity side of the Court of Common Pleas of Lebanon County, entered to No. 2, Equity Docket, 1879, for an account.

“ And, whereas, the said John Young denies that he is indebted in any manner whatever, to said John C. Seltzer on account of the said co-partnership relations, but, to avoid the expenses and annoyance of litigation, has agreed by way of compromise to pay to the said John C. Seltzer, the sum of one thousand dollars in full settlement of all actual or supposed claims which the said John C. Seltzer may have against him from all sources whatever arising out of the aforesaid co-partnership relations, not only for the period covered by said bill, but up to this day, which sum the said John C. Seltzer has accepted, and the same has been paid by the said John Young. Therefore, in consideration of the payment of the said sum of one thousand dollars by the said John Young, I do hereby agree and bind myself to discontinue at once, the aforesaid equity proceeding; and hereby, for myself, my executors and administrators, have remised, released, acquitted and forever discharged, and by these presents do remise, release, acquit and forever discharge the said John Young, his executors and administrators, of and from all claims and demands whatsoever, for, or on account, of my share of any *428money, income, profits or property, that may be due to me, or that he may have received, or been entitled to receive, belonging to the said co-partnership during the whole period of their existence, howsoever constituted, from the beginning thereof up to this day; and of and from all action or actions, suits, payments, accounts, in law or equity, claims and demands whatsoever, relating thereto, from the beginning of the world to the day of date of these presents.”

On the back of the release, was this endorsement, signed by John Young and John C. Seltzer:

“ The above release is not intended to affect the outstanding accounts now unpaid, or the interest of John C. Seltzer as proprietor of one-third of the office of the Pennsylvanier, good will, job, subscription, and material, &c., belonging to the said office (building not included). New articles of partnership to be agreed upon after the foregoing release is executed.”

On Nov. 3, 1880, the firm was dissolved. In March, 1881, the defendant paid to the plaintiff $2590, but the note was not surrendered. In 1885, Young instituted an equity suit against Seltzer for the cancellation and delivery of the note in suit.

Thos. H. Capp, counsel for plaintiff, testified that he and Seltzer called upon Young, who stated that he had agreed that the money paid on the note should be appropriated to the payment and extinguishment of Seltzer’s interest in the printing establishment; that the bringing of the equity suit for the cancellation of the note was a mistake; it was all wrong; that it had been agreed between himself and Seltzer that the amount of money paid by him to Seltzer on account of the note should be appropriated to the interest which Seltzer had in the firm of Young & Seltzer, and that the note should stand good as though never paid; that that was the arrangement between himself and Seltzer, and that arrangement should be carried out, and he would pay the note as it stood, with accrued interest.

Defendant’s counsel offered the release in evidence for the purpose of showing that there was a total dissolution of the partnership between these people, as evidenced by the release we propose to offer in evidence; and which is referred to by the note and receipt which has already been offered in evidence, and to identify it as all one transaction, showing that these people had dissolved and made a joint settlement of their affairs, and that the plaintiff in this case has executed a final release upon the payment to him of the amounts which we have already given in evidence.

Objected to as entirely irrelevant and incompetent.

The Court: We will admit the release, and note an exception in favor of the plaintiff. [1]

Defendant’s counsel proposed to show by Mr. Benson that it was in pursuance of the advice of Mr. Benson as counsel, after a thorough examination of these papers, and upon the opinion that he gave Mr. Young that they were a good and sufficient defence to all actions of Mr.. Seltzer against him, that Mr. Young discontinued *429the suit in equity that is now alleged as the consideration for another purpose. This for the purpose of contradicting Mr. Capp as to the reasons given for the settlement of the equity suit.

Objected to that Seltzer was not present, and evidence of that kind cannot be competent to affect him — conversations had between John Young and somebody else.

The Court: I do not understand it to be conversations. They offer to prove by the witness the reason of the settlement of the equity suit. Mr. Capp gave on the stand one reason, and now they offer to prove by Mr. Benson a different reason.

Objected to further as incompetent.

The Court: If the witness knows of his own knowjedge the consideration that led to the settlement of that equity suit, we think it is competent, and therefore we admit the offer. Whether the testimony comes up to the offer or not will determine whether the testimony will be competent. Exception. [2]

The evidence under the offer was as follows: “ I was called in by Mr. Young on a half-dozen different occasions while he was sick. He stated to me that there was an equity suit that Mr. Adams had brought, and he showed me his papers, agreements, checks and papers in relation to the transaction between him and Mr. Seltzer— he called my attention to checks that he had given to Mr. Seltzer— and that you know — that he had given to Mr. Seltzer for $2,500— he showed me checks for $2,500; and he told me that he had given Mr. Seltzer a note for $2,500; and that these checks were given in payment of that note. After seeing the checks, he told me that the checks were given in payment of a note, and that a suit had been brought in equity for the purpose of canceling these notes, or for the purpose of showing that they were paid. He also told me that at the time that he paid $1,500, I think it was — the first check — he told me that he had paid $1,500, the first payment on them, and that Mr. Seltzer didn’t have the note — he told me that he had paid on several occasions, or one, anyhow — one either five hundred or a thousand, the whole of it, and that Seltzer didn’t have the note— that Seltzer had promised to deliver the note at some future time— that he had met him, and didn’t have the note.”

The Court: Part of this we will strike out — that matter as showing what Seltzer promised him — because he is going to prove substantive facts.

General Gobin: I do not think it is substantive facts, and your Honor will give us an exception for striking it out. How are you going to divide his declarations ?

The Court: We will retain it. Exception. [2]

Defendant offered to show, by J. G. Adams, the reasons for and the manner in which the settlement of this equity suit took place. Objected to.

The Court: Admitted for the reasons given as to the others.

Mr. Weidman: It was not in the presence of Seltzer ?

*430General Gobin: Not that Tam aware of.

The Court: We will admit the evidence. Exception. [3]

The evidence under the offer, was as follows :

“ Q. Tell us how it was? A. Mr. Young sent for me, and I went to his house, and he told me that he had submitted the papers relative to the Seltzer matter to Mr. Benson, that Mr. Benson had examined them, and had advised him to discontinue the suit, and then requested me to have it done. I came to the court-house, and got the amount of the costs from the prothonotary, whatever it was, in order to pay the costs of the bill in equity suit, and drew up that agreement for Mr. Capp and myself to sign.” [3]

The court charged, inter alia, as follows:

“ The plaintiff brought this action, claiming in it to recover the amount of a certain note which has been given in evidence, as you have heard; and also certain items which he claims are due on account of the subscription lists which are contained in the book, which you have also seen. After the note was given in evidence, the defendants gave such evidence as tended very strongly to prove that the note was paid ; and the case finally took such a turn that the plaintiff conceded that the note had been paid — that, at a certain time, or perhaps two different times, in the year 1880, payments were made, which, for the time being, as the plaintiff concedes, extinguished that note. So that all the evidence that was given to prove the fact of the payment is of no special consequence in the case, in the shape it is. It is conceded by the plaintiff that the note was paid. So, if there was nothing more than that in the case, it would be at an end without any trouble on your part whatever.

“ But the plaintiff now claims that, while it is true that the note was paid, yet there- was an agreement made afterwards by the parties, plaintiff and defendant. That is, by the plaintiff and by John Young, during his life time — his executrix and her husband being now the defendants — that there was an agreement made that the note should be revived, and should stand for the amount stated in it, to wit: $2,500. The plaintiff claims that John Young owed the plaintiff that amount, because of the plaintiff’s interest in that printing establishment, and that it was agreed that the note should stand for that amount.

[“ You are to determine, then, whether there was an agreement made between these parties, that the note was to stand for another and a different debt than the one for which it was originally given; and, in order to determine that question, you will have to determine whether there was another debt — you will have to determine, in other words, whether John Young did owe Seltzer $2,500, or any sum which the parties might reasonably agree to be $2,500— whether he was indebted to Seltzer, and because of that indebtedness did make an agreement with Seltzer that the note was to stand for the indebtedness, and agree that the indebtedness should be $2,500 and the interest. That is the question that you -are to determine. *431You are to determine that from the evidence that was given, especially the evidence of Mr. Capp, and all the other evidence relating to that branch of the subject.] [4] That branch of the case was not brought out at all until Mr. Capp was called as a witness. You are to determine that of course from all the evidence, and especially that which was given then and afterwards in the evidence up to the end of the case.

[“ Defendants claim that there was no such indebtedness at all. Plaintiff claims that there was; that Seltzer had so’ much interest in the newspaper establishment — and that Young owed Seltzer, who had been a partner in the establishment, that much — that this was a fair price or value for the interest that Seltzer had in it; and that on this account they agreed between them that this was the amount, and that this note was to stand for it.] [5] ....

[ “ But you must consider from all the evidence whether Young did owe Seltzer for his interest in that printing establishment; and, if he did, did they settle on the amount, and did they agree that this note should stand for it ? If you find that to be the fact, then on that branch of the case your verdict would-be in favor of the plaintiff for the amount which you find that he did owe, and which he did agree that this note should represent. If you find that he did not — if the plaintiff has not made out by a preponderance of evidence the fact that Young was indebted to Seltzer — if you do not find such indebtedness made out by the evidence — then, of course, your verdict on that part of the case would be for the defence.] [6]

“ There is _ another branch of the case, and we put that to you separately, wishing you to consider it separately. The other branch of the case is as to what is due, if anything, on these subscription books. That is the other branch of the case, and that you will consider by itself, and separately, and determine what is owing on those books. What did Young collect on that book, called the Seltzer book, which he did not account for and pay over to Seltzer ? And whatever you find, if anything, on that, that you will render a verdict for in favor of the plaintiff. If you find for the plaintiff at all, we wish you to keep these two amounts separate. If you find for one, you state the amount. If you find for the plaintiff on both, you .state the amount on each separately. That is to say, if you find that any amount is due on these subscription books that Young collected, and did not pay over, put that down as a separate amount. And if you find for the note, you put down what you find for that note in a separate amount.....

[“ But you have simply to determine upon the questions of fact — the two questions presented to you — whether there was an agreement at any time, after that note was paid, that it should stand for a debt which Young owed to Seltzer on account of that newspaper concern ?] [7] And, secondly, how much, if any, did Young collect on those subscription lists which he did not pay over to Seltzer? [Those are the two questions that you are to determine, and *432you are to determine them from the evidence without regard to who are the parties on the one side or the other.] [7] Determine it from the evidence, and render such a verdict as you believe to be true, from the evidence.”

Verdict and judgment for defendant on the first claim (the note), and in favor of the plaintiff on the book-account in the sum of $141.10 principal, and $21.16, two-and-a-half years’ interest — total, $162.26. The plaintiff then took this writ.

The assignments of error specified, 1-3, the rulings on the evidence, quoting the bills of exception and the evidence, as above; and, 4-7, the portions of the charge included within brackets, quoting them as above.

Grant Weidman, with him Thomas H. Capp and George B. Schock, for plaintiff in error.

The release was executed six months before the dissolution of the partnership, and could prove nothing as to the business relations between Young and Seltzer after May 5. The interest which plaintiff claimed was only acquired in November. The admission of irrelevant evidence is error: Whitney v. Moore, 77 Pa. 479; Erie R. R. v. Decker, 78 Pa. 293 ; Brobst v. Welker, 8 Pa. 467; Featherman v. Miller, 45 Pa. 96; Rouch v. Zehring, 59 Pa. 74; Fosters. Shaw, 7 S. & R. 156; Young v. Edwards, 72 Pa. 257.

The testimony of Benson and Adams, was an attempt to contradict the declarations of Young, then deceased, against his interest, by evidence of other and different declarations of Young at other times, not made in the presence of Seltzer. A party cannot make evidence for himself: Galbraith v. Green, 13 S. & R. 92; Kean v. Ellmaker, 7 S. & R. 5; Gordon v. Bowers, 16 Pa. 226; McGregor v. Sibley, 69 Pa. 393; Graham & Co. v. Hollinger, 46 Pa. 56; Duvall’s Ex’r v. Darby, 38 Pa. 56.

The court entirely misunderstood the testimony in the case, and misdirected the jury in consequence, and the error runs through the whole charge. The contention of the plaintiff was that he was entitled to recover upon the note, because, by agreement between himself and Young, the payment made by Young on account of the note was applied to the payment and extinguishment of his interest in the firm of Young & Seltzer, successors to Young, Light & Seltzer, under the sale of Nov. 3, 1880, and that the note should be revived as a legal obligation against him, and stand as though no payments had been made upon it. That was the question which should have been submitted to the jury, and it was in accordance with the testimony submitted in the case. The court, however, submitted an entirely different question, upon which there was no testimony offered at all, to wit: as to whether or not Young owed Seltzer, on account of the printing business, $2,500 — and whether it was agreed that this note was to stand for this new and different indebtedness.

*433We submit that, on this theory of the plaintiff, he was not required to prove more than the agreement between the parties that the note should stand as a valid obligation against Young, and the payments made on it should be applied to another account between them. The plaintiff proved this agreement. Yet the court submitted an entirely different question.

As the matter was put to the jury, they could have reached no other conclusion than they did, because there was no evidence of any agreement that the note was to stand for the new debt, i. e., the interest of Seltzer in the partnership.

That the charge of the court excepted to was erroneous, is shown by the following authorities: Egberts. Payne, 99 Pa. 244; Calvert v. Good, 95 Pa. 63 ; Wengerd v. Fallon, Ibid. 184; Elkins v. McKean, 79 Pa. 300; Sartwell v. Wilcox, 20 Pa. 123; Canal Co. v. Harris, 101 Pa. 93 ; Bogles Ex’rs v. Kreitzer, 46 Pa. 469; New-baker v. Alricks, 3 Watts, 183; Whitehillw. Wilson, 3 P. & W. 405.

It is evident, from the record of the testimony, that the court did not at any time clearly apprehend the character of the claim of plaintiff, as will appear from the repeated refusal of the offers of plaintiff’s testimony (which was clearly proper, under the authority of Kane v. Cortesy, 1 Cent. 243 ; Woods v. Russell, Ibid. 336 ; Peirce v. Black, 105 Pa. 342); and the charge of the court.

J. P. S. Gobin, with him J. G. Adams, for defendant in error.

The release was one of the papers showing the whole transaction between these people. It grew out of the same transaction that the note did; and was referred to in the note; in short, the case could not intelligently have been presented to the jury without it.

Even if inadmissible, an error by which the plaintiff in error could not have been injured is no ground for reversal: Edgar v. Boies, 11 S. & R. 444; Brady v. Calhoun, 1 P. & W. 140; Unangst v. Kreamer 8 W. & S. 391; Jarret v. Tomlinson, 3 W. & S. 118 ; Postens v. Postens, 3 W. & S. 127; Miles v. Stevens, 3 Pa. 22 ; Dotts v. Fetzer, 9 Pa. 88; Mishler v. Com., 62 Pa. 55; Hoskinson v. Eliot, 62 Pa. 393; Heysham v. Dettre, 89 Pa. 306.

In the authorities cited by the plaintiff in error, the testimony admitted was not only clearly irrelevant but was injurious to the party complaining. In most cases it required testimony to rebut, and in some it seems to have been the only testimony admitted. Young v. Edwards decided only that “a party can not offer evidence for a specified purpose, and complain, when it is rejected, that it was legitimate for another and distinct purpose.”

Evidence erroneously admitted for the purpose for which it was offered, being found competent for another purpose, the error was cured: Lycoming Mutual In. Co. v. Sailer, 67 Pa. 108. The admission of evidence, which, although incompetent and irrelevant at the time, afterwards became admissible, and which did not deceive or mislead the jury, will not constitute adequate ground for *434reversal: Carn v. Fillman. 10 W. N. C., 1 <2: Laird v. Campbell, 12 W. N. C, 163.

The evidence of Benson and Adams was not received to contradict Capp, nor to contradict any declarations made by Young, by other declarations, but to show that, at the time the equity suit was discontinued, there were other reasons for it, which led to its discontinuance, for which purpose we claim the testimony was competent: Burkholder v. Plank, 69 Pa. 225 ; Rouch v. Zehring, 59 Pa. 74.

The testimony of Benson and Adams pertained only to the reason which led to the discontinuance of the equity suit, and could not possibly have any bearing on the question of the indebtedness. This fact having been determined against the plaintiff by the jury, it can be of no importance what other facts were in dispute.

As to the charge of the court, it is immaterial whether the alleged promise was that the payments made on the note should be applied on such liability or indebtedness and that the note should stand as not having been paid, or that the payments made on the note did pay the note and that the note should represent the old indebtedness. In either case, it was necessary that there should be a consideration for the promise to support it, otherwise it was void. The real question for them to determine was: Was there such other indebtedness existing? and this the jury could not fail to understand from the whole charge.

After the note had been fully paid and satisfied, no agreement could be made, nearly five years afterwards, by which the note could be revived for the purpose contended for by the plaintiff.

In Woods v. Russel, the purpose of the testimony was not to reform the writing or to contradict the language of it, nor to revive a note after it was fully paid and satisfied. The only question that was raised in that case was, whether the note was paid, and all that this court decided was that a note may be arranged in a different payment than that in dollars and cents, and that oral testimony is admissible to prove such payment.

In Peirce v. Black, a parol agreement was made, at the time of the payment of the first loan on the judgment, that the judgment should not be satisfied of record, but should remain unsatisfied, that defendant would want to borrow some more money on it, and that the defendant afterwards did borrow more money on the judgment. The agreement was made at the time of the payment of the first loan, and was supported by an entirely new consideration.

Kane v. Cortesy, in effect, decides nothing more than the well established principle that the time of payment or the performance of a contract may be extended upon a new and sufficient consideration, and that parol evidence is admissible to prove the agreement for such extension.

Parol evidence to contradict, vary, or change written instruments, should be shown by two witnesses, or by one witness corroborated by circumstances equivalent to another: Thomas & Sons *435v. Loose, 114 Pa. 35 ; Nulton’s Ap., 103 Pa. 286; Philips v. Meily, 106 Pa. 536.

March 4, 1889.