186 Pa. 614 | Pa. | 1898
Opinion by
This was an application by the defendants in a judgment to have the judgment opened and the defendants let into a defense. The petition set forth the facts upon which the application was based, a rule to show cause was granted, testimony was taken, and after argument in the court below the rule was discharged with a short opinion stating the reasons for the action of the court. After having carefully read and considered the whole of the testimony we have reached a different conclusion, and think the rule should have been made absolute and the whole matter sent to a jury to determine the disputed facts. There can be no controversy as to the law of the case. It is an application to open a judgment upon an allegation that, at the time the judgment bond and mortgage which accompanied it were given, there was a verbal agreement made between the parties that if the defendants were unable to keep the property they
Mrs. Maride, in whose name the transaction was made, after
Charles Markle, being examined, was asked: “Q. You are the husband of Annie M. Markle? A. Yes, sir. Q. Were you present at the time this contract was entered into for the purchase of this property between your wife and Mr. Cloud ?. A. I was. Q. State what took place that you heard. A. The proposition was when he came over in the evening that he wanted me in the first place to buy the property. I told him I had no money. He said, ‘We don’t want any money.’ He says, ‘ All we want is the interest.’ I says, ‘ That is something else.’ So then he made the proposition to me that he would sell me the little property for $2,500, and he would give me a week to study over the matter. I said I would study over it. When the week was up my daughter went over to where he lived? Q. Was that all that was said at that time? Were the terms stated? A. That he would sell the property for $2,500, and if I did not keep it or could not hold it, they would take it back, if I could not make up the interest.”
Ida M. Markle, the daughter, testified as follows : “ Q. You are the daughter of Mr. and Mrs. Maride? A. Yes, sir. Q. Were you present when this contract of sale was made
While the plaintiff denies that there was any agreement to take the property back, he corroborates the testimony of the Marides in regard to their saying they had no money, and were not able to buy the property. He said also he consulted with his mother in regard to the matter and she agreed that they might have the property without any money and pay for it when they became possessed of money, as Mrs. Markle had said she would.
On this subject there was a considerable amount of testimony, which was without any serious contradiction. Mrs. Maride testified as follows: “ Q. Did you subsequently make any arrangements with G. Pearson Cloud about returning to him the property and if so, when? A. We kept it almost two years and found we could not make the rent or interest, as he said it was the same as rent, and .we returned it, and he took the place, advertised it and rented it. He told us he had rented the place and we would have to get out. He advertised it for sale or rent, almost two years after that, in February, on the 11th. In January we returned it. February 11, he advertised it for sale or rent and told us the last of February he had rented it, and we would have to get out. He knew we were going, and was satisfied for us to go. We expected to move to Bristol, and he offered to take a load of goods to Malvern for us. After he
On the same subject Charles Maride testified. After saying that he moved upon the propertj^ after the purchase, he was asked: “ Q. You remained there how long? A. Very near two years. Q. At the end of two years what took place between you and Mr. Cloud and your wife, or you and Mr. Cloud in relation to this property? A. It was in the winter time. I went over and told Mr. Cloud 1 would hold him according to his proposition that they had made with themselves; that 1 would give up the property; that I was done. I would not have any more to do with it now, as I could not hold it. I says, ‘ I will pay you all the interest up I owe you, and to get the money I will clean myself out of everything I have got, that I can make up the money.’ He says, ‘Don’t talk that way.’ . ... Q. Was there any effort made by Mr. Cloud to your knowledge to rent the property? A. The first thing I seen it was advertised in the paper for sale or rent. Q. What paper did you see it in? A. The daily local. Q. The advertisement which was read here a moment ago ? A. Yes, sir. Q. Did you have any talk with Mr. Cloud as to where you could leave the key of the property? A. The day I moved he asked me where I would leave the key. I told him I could leave it most any place; that I could take it to his house. Pie said no; there was no use in doing that; just to leave it with James Crosley, and that is the last I had to do with anything about the property.”
After speaking of a meeting with Mr. Cloud at the Green Tree, he said: “ He came and told us that his lawyer said there was nothing in the papers, that he could take the property back, and I says, ‘I can’t help that, you have already taken it. You have advertised it for sale or rent, and you have rented it.’ And I says, ‘ Now you want to go back on your proposition.’
The advertisement was given in evidence, and it was in these words, “ For sale or rent — A house and ten acres of ground in East Goshen township, near Dutton’s Mill. Apply to G. Pearson Cloud, Cloud, Pa.”
Mr. Cloud, when on the witness stand, admitted that he had advertised the property for sale or rent, and that he had rented it to Byers and collected the rent. He also admitted that both Mr. and Mrs. Markle had come to him and told him that they could not keep the property, and could not pay for it, and wanted him to take it, but said that he had declined to take it, because he had no power to do so, and he also denied that he ever agreed to take it back.
Ida M. Markle, the daughter, also testified upon this subject. She said: “He told us we would have to leave. Q. Who told you you would have to leave ? A. Mr. Cloud told us we would have to leave the property when he got the tenant. He put the advertisement in the paper and we saw it and he told us we would have to get out and leave the key at Thomas Crosley’s, which we did.” She gave other testimony to the same effect which it is not necessary to repeat. Samuel Byers testified that he rented the property for his son from Mr. Cloud, and that his son moved in and occupied it for a year. John Byers, the son, testified that his father had rented the property for him, ■ and that he occupied it as tenant for a year and paid the rent to Mr. Cloud.
There was some other corroborating testimony but it does not require repetition. There was some conflicting testimony as to what took place at an interview at Mr. Gheen’s office, all of which would be proper for the consideration of a jury but need not be discussed here.
The judgment of the court below is reversed and the rule to show cause is made absolute, and a procedendo awarded, at the cost of the appellee.