20 Pa. Super. 133 | Pa. Super. Ct. | 1902
Opinion by
In this action, brought to recover a sum admittedly due the plaintiff, the defendant pleaded set off, and on the trial offered in support of its claim the following subscription paper dated June 18, 1891: “ We the undersigned do hereby for ourselves, our heirs, and executors or administrators and assigns promise and agree to pay to II. H. Kreider, within ninety days from this date the amount set opposite our respective names, provided the full sum of $2,000 be secured.”
Subscriptions for divers sums, amounting in the aggregate to $705, preceded that of the plaintiff for $50.00, then followed a subscription by another party for $270, and then another subscription by the plaintiff for $97 5, thus making the. sum of $2,000.
To meet the objection, apparent ,on the face of the paper,
As to the foregoing facts the evidence is clear enough, but the same cannot be said of the evidence adduced in support of the allegation that the subscription was for the specific purpose of repaying a loan made by the college. Still less clearly does it show that it was the inducement for the making of such loan. True, some of the witnesses testified that Mr. Kreider was authorized to borrow $2,000 with which to pay debts of the college ; and, that he did make such loan by having a note discounted at the Annville National Bank is sufficiently established by the testimony. But no minute of the board giving such authority was offered in evidence; and the testimony of the de
Two views as to the obligation intended to be assumed by the subscribers to the paper in question have been urged upon our consideration by counsel. One is that they intended to bind themselves to furnish to the college, the funds with which to discharge the loan that had been made or was then in contemplation ; in which case, it is claimed, they would still be bound notwithstanding the subsequent change in the form of the indebtedness. The other view is that they intended an obligation to H. H. Kreider personally, because of the personal liability he had assumed, or was to assume; in which case his right, whether to absolute and unconditional payment, or to
The defendant’s counsel argue that, as the paper was drawn at the meeting when the resolution was adopted, the natural inference is that it was drawn pursuant to the resolution, and that the intention of the subscribers was to assume the obligation which the resolution contemplated. It is to be noticed, however, that the paper makes no allusion to the resolution, that the scrivener was not called to explain how the alleged mistake was made, and that outside the resolution the evidence of what was said and done at the meeting is vague and unsatisfactory. It was clearly not competent to ask the witnesses, “ What was the intention of the parties there present at the time when this paper was drawn as to whose order it was to be made payable to ? ” Spencer v. Colt, 89 Pa. 314; Juniata Building & Loan Assn. v. Hetzel, 103 Pa. 507; Thomas & Sons v. Loose, Seaman & Co., 114 Pa. 35 ; Commonwealth to use v. Julius, 173 Pa. 322. The court properly rejected such offers. There remained the unexplained discrepancy between the resolution appointing the committee and the subscription paper, but to presume a mistake, common to all the parties, from the mere failure of the latter to agree with the former is, obviously, not an easy matter. And, surely, no such inference as that above suggested can be drawn against those subscribers who were not present at that meeting; and the evidence does not clearly show that all were present. In making this statement we have not overlooked the memorandum indorsed on the paper which seems to show that the full amount was subscribed on June 18; but it does not show that all the subscribers were present at the meeting. However, it may be as to the intention of those who were present, as to the understanding and intention of those who were not present we have no knowledge or means of knowledge except what the paper itself discloses. Without entering upon any unnecessary discussion of the general question of the validity of a gratuitous subscription, we think it clear that where such subscription was made on condition that a
Considerable stress is laid by the defendant’s counsel upon subsequent declarations and admissions made by the plaintiff. I. H. Haak, one of the subscribers, as well as a member of the committee, testified that he received notice “ that the $2,000 on that subscription was now secured, consequently my subscription of $50.00 was due and payable to the treasurer,” but whether this notice came from the plaintiff or from Mr. Ereider he was unable to say. Therefore, this part of his testimony establishes no admission on the part of the plain,tiff. As to what occurred between him and the plaintiff lie testified as follows: “I went to Annville, saw Mr. Bierman, asked him to see this paper.....Q. Did he show you that paper? A. Yes, sir, I saw his subscription for $975. Q. Whose subscription? A. President Bierman’s, and I asked him how it was about this last subscription, 1975. He said it was all right; he said he will have to pay it if he can’t collect it, and on the strength of that I paid my $50.00 and turned over Von Neida’s. Q. On the strength of what? A. That representation that his subscription was bona fide.” Other declarations to other persons to the effect that the full amount of $2,000 had been subscribed, and that he was good for all his subscriptions and would pay them were also shown. These latter declarations stand on a different plane from the declarations alleged to have been made to Mr. Haak, and are effectual only as evidence of the facts admitted, not to create an estoppel. But upon the question whether there is sufficient evidence to warrant a reformation of the subscription contract, the same objection applies to both. It was well expressed by the learned trial judge as follows : “ Expressions made by the plaintiff to these different witnesses that it -was a bona fide
A person who seeks to rectify a deed on the ground of mistake must establish, in the clearest and most satisfactory manner, that the alleged intention to which he desires it to be made conformable continued concurrently in the minds of all parties down to the time of its execution; and, also, must be able to show exactly and precisely the form to which the deed ought., to have been brought. To reform a contract, and then enforce it in its new shape, calls for a much greater exercise of-the power of a chancellor than simply to set the transaction - aside. Reformation is a much more delicate remedy than rescission. Hence, in order to justify a decree for reformation in cases of pure mistake, it is necessary that the mistake should have been mutual: Bispham’s Eq. (5th ed.) sec. 469. In view of the fact that this subscription was conditioned upon the whole amount being secured, these principles are applicable here. After a lapse of nine years an attempt to reform such a paper so as to make it import an obligation to pay to another person than the person named, for a different purpose or for a purpose not designated in the paper itself, must necessarily be attended with difficulties, and properly so. It is not the duty of the court to minimize them as far as possible and then cast the entire responsibility upon the jury. If mistake is alleged, such attempt can only be successful where the evidence of mistake is clear, precise and indubitable. To create a doubt whether the paper fully aiid accurately expresses the common intent of all the subscribers is not sufficient. It is true, under our practice in Pennsylvania, reformation or its equivalent may be accomplished by common-law forms. But the fact remains that the relief claimed is purely equitable, and the judge ought not to submit the case to the jury unless the evidence is such that he would feel himself bound as chancellor to reform the instrument: Phillips v. Meily, 106
All the assignments of error are overruled and the judgment is affirmed.