272 Pa. 181 | Pa. | 1922
Opinion by
The plaintiff brewing company is located at Cincinnati and, in 1890, Joseph Bruening, the distributor of its beer in Pittsburgh, leased of Mary E. Schenley a lot at the corner of Second Avenue and Try Street, in the latter city, for the term of seven years, with the right to remove improvements erected thereon. Bruening erected certain buildings on the lot, which, with an assignment of the lease, he transferred to Christian Moerlein, of the plaintiff company, in 1893 for $17,000. In 1895 Ernest F. Rusch, the defendant, took Bruening’s place as the exclusive distributor of plaintiff’s beer in Pittsburgh and vicinity, and to him Moerlein made a sublease of the premises. At the expiration of the seven-year lease, Mrs. Schenley made a new lease to Rusch, for the same lot for a term of twenty and one-fourth years, which, in 1898, he, with Mrs. Schenley’s approval,, assigned to John Moerlein, who held it in trust for the brewing company. That year (1898) plaintiff expended over $33,000 in the erection of new buildings upon the lot, and in 1907 the further sum of $11,000. The lease stood in the name of John Moerlein until 1911 and meantime the premises were occupied by Rusch, who was licensed as a wholesale liquor dealer, but his sales were confined exclusively to beer bought of plaintiff. The arrangement was apparently beneficial to both parties; it made a market for plaintiff’s product and defendant realized the profit on a large sale. So, while plaintiff furnished the place, defendant paid the ground rent, taxes, etc., incident to the leasehold estate. However, in 1906, viewers of a street improvement made a benefit assessment of $12,300-against this leasehold estate. In this proceeding Rusch was named as owner and took an appeal; but some years later a compromise verdict was taken in favor of the city for $9,000, which was paid by plaintiff through defendant and at his request. Before this compromise, defendant’s attorney wrote plaintiff’s agent requesting a reassignment of the lease to Rusch as
About 1910 it became known that the city would so lower the grade of the street in front of this lot as to render the buildings thereon inaccessible and unfit for defendant’s use. In view of that, plaintiff purchased another lot in Pittsburgh on which it erected very expensive buildings, to which defendant removed his business. In 1912 the city proceeded with the change of grade of the street in front of the Schenley lot, and the question of damages-to the leasehold interest, standing in the name of Rusch, became vital. At the request of his attorneys, and to remove any question as to the proper claimant, John Moerlein, in 1913, duly assigned to Rusch all damages sustained by such change of grade. Thereafter, on December 2, 1915, the city paid Rusch $49,-932.89, which included interest to that date, being the amount of the damages caused to the leasehold estate as adjusted. This suit was brought to recover from Rusch the sum last above mentioned, with interest, on the averment that, while the leasehold stood in his name, he was in fact the trustee thereof for plaintiff; this he denied and the case went to jury trial. Plaintiff offered a large am ount of evidence tending to establish the trust, including oral and written admissions of the defendant, who also submitted evidence in support of his denial. The trial judge charged the jury the burden was on plaintiff to establish the trust by evidence clear, precise and indubitable. The verdict was for plaintiff for the full amount of the claim, and from judgment entered thereon defendant brought this appeal.
A careful examination of the entire record discloses no reversible error. The proofs fully justify the finding
It is competent to show a writing was executed on the faith of a parol promise, although the latter may change the terms of the former: Excelsior Sav. F. & L. Assn. v. Fox, 253 Pa. 257; Gandy v. Weckerly, 220 Pa. 285.
It is not necessary here to decide whether a leasehold estate is such “lands, tenements or hereditaments” as falls within section 4 óf the Act of April 22, 1856, P. L. 532, for, if so, the trust is sufficiently manifested or acknowledged in writing signed by defendant to satisfy the statute. The locus in quo is admitted and described in the affidavit of defense and attached exhibit, while the trust is manifested by defendant’s letters. Aside from this, plaintiff’s suit is for personal property, to wit:
As plaintiff is not trying to enforce a trust as to realty, the five-year limitation contained in section 6 of said act does not apply. In fact the damages for injury to the leasehold were received within less than five years after the lease was assigned to defendant and this suit was brought within less than five years after the damages were so received; of course plaintiff’s right to sue for the money did not accrue prior thereto. Whether it was a resulting trust, or a trust so far executed as to take it out of the statute of frauds, we need not determine.
J. Greenfelder, as plaintiff’s agent, had numerous conversations with defendant concerning questions pertinent to this suit. While the matter was fresh in his mind, Greenfelder put the conversations in writing in the form of reports to plaintiff. At the trial, Greenfelder was examined as a witness, but could not recall the substance of the conversations, even with the aid of the reports. He, however, identified the reports and testified, in a general way, as to his knowledge of their accuracy when made. The admission of the reports, over defendant’s objection, constitutes the fifth assignment of error. The question was rightly ruled. Where a witness has a present recollection of a past event, although his memory is refreshed by a memorandum made at the time of the event, he testifies from such recollection; but where he has no present recollection of such past event, even when aided by his memorandum, the latter itself may be offered in evidence, on proof by the witness of his knowledge of its accuracy when made and that it was made when the transaction was fresh in his mind. This is in terms past the recollection of the witness and is admissible in evidence under the great weight of authority.
We have referred to a letter from defendant’s attorney requesting a reassignment of the lease to Rusch, and error is assigned to its admission because neither his signature nor his authority was proven. Error is also assigned to the admission of defendant’s letter to plaintiff of July 19, 1911, for lack of proof of the signature, which was typewritten. No such objection was made to either letter in the court below and therefore cannot be considered here: Benner v. Fire Assn, of Phila., 229 Pa. 75; 3 Corpus Juris, p. 818. The place to question the authenticity of written evidence is in the trial court, where it can be met,
The assignments of error are overruled and the judgment is affirmed.