112 Pa. 371 | Pa. | 1886
delivered the opinion of the court, April 5th, 1886.
At the trial of this cause, in the court below, the learned judge withdrew the evidence from the consideration of the jury, and gave- binding instructions to find for the plaintiff. The defendants, Mary C. Griswold and Henry S. Griswold, her husband, contended that the judgment should not be revived against them, for the reason that Mrs. Griswold had paid her part, and, by the agreement of James Wood, the present plaintiff, had been released as to the balance. The sole question, therefore, for consideration here is, whether or not there was any evidence in the cause directly showing a valid release of Mrs. Griswold, or from which such a release might be inferred; and in the determination of this question we are not to pass upon the credibility of the witnesses or the conflict in the evidence, or to be governed by the preponderance of the proofs. The question is, whether or not there was any evidence in the cause from which the disputed fact might be fairly inferred. It seems to be conceded that, at the time
On the 8th Nóvember, 1875; Louise Wood died, James Wood being, the sple',deyis,ee'of her' estate, auct on the 11th November, 1875, Mr; Wood made an exchange of his interest the- hoprestea.d;-(acquired, Under, the, will'of his deceased wife) for certain lands of Mrs. Griswold. The deed from Mr. IWoodi contained ¡ajclauge,fiis fijllows: -•‘'This conveyance is in way to affect the lien of a certain judgment, originally.in the -name of -Gurdop Hewitt v. David Cash-, and now owned by the -said; party of.' the first part.” Mrs. Griswold says slie .refused, to take the deed on account of the; abové .recited ¡.clause contained.iq it;, that Wood assured her'then, that under no, circumstances should the Hewitt judgment ever cost her a dollar; tha¡t the boys had property, to pay it, and that he would-collect it put of their property. That her'aceeptance of the deed should,not; make, her in anyway liable; .that he ctíuld not release her,, without ¡releasing, those: who should pay ,it; but undqr no. circumstances should she be held for it. She .asked him for a writing’ to tins effect, but he took some of-,-fence at the'suggestion,,and she ¿accepted, it without writing. Dn her cross-examination, she says Wood .told her -that this clause iutfip deed.,.“.should not make any difference;” ¡h should not affect filer property,’) or “ make filer, liable for the He.wett
What the contract is, in its'terms and extent, is ordinarily for the jury, under all the evidence; but, assuming it to have been what Mrs. Griswold and her husband say it was, its force and legal effect become a matter of law for the court. The agreement of the heirs, that each would pay their proportional -part of the judgment, did not of course, bind Hewett; nor after 'the assignment to Wood, did it oblige him, as the as-sign'ee, to collect the residue from those of the heirs in default. Jt is true that he purchased the judgment for the express protection of the gilds, and said that it should not cost them.a dollar, that the property of the boys'should pay it; but this ,was a.- merely voluntary promise without consideration, and lacks the essential requisites of a contract. .
•The defendant,'Mrs.'Griswold, claims'in the first instance however, that her acceptance of the deed, dated 11th of November, -1885, under the circu hi stances stated, operated as a releas’e 'of her liability on the Hewett judgment. We do not think so. ! What was .said at this time was expressly referable to the particular transaction then in hand; and it is plain, from the language employed, that the agreement, if any existed, was that, notwithstanding the saving clause written .the deed, the rights of the parties to thé Hewett judgment were to remain as before ; that the clause in question, “should '.liot make any difference,” or “affect her property,” or “make her liable for the Hewett debt;” but she “ was to have- it just as the arrangement had been.” If there had been no previous release of .the defendant’s liability, none would, appear to have been then in contemplation of the parties; for it is admitted -that Mr. Wood told Mrs; Griswold at .the time that .he could mot release her,, assigning as a reason he could not release one ptarty without releasing all; there .is not only an absence of proof to establish any'such intention of the. parties, but to give .the transaction this effect would extend, the release beyond the •consideration upon which its. validity necessarily'depends.
The effect of .the saving. clause, in the conveyance of this particular undivided interest, was the subject matter of the 'contract, and the words of an agreement are ordinarily intended to be applied to the thing about which the parties are contracting: Edelman v. Yerkel, 27 Penn. St., 26. Courts of
But the testimony of Henry S. Griswold as to the transaction between these parties in May, 1876, when the interest of George P. Cash was sold by the sheriff, is such, we think, as required a submission to the jury. Mr. Griswold, in the interest of his wife, and Mrs. Wood, in her own interest, attended that sale; it was arranged that one Kirby, who held a judgment against George P. Cash for some $500 or $600, should bid off the property as low as he could, and that Mrs. Wood and Mrs. Griswold would take it off his hands at $1,000. This arrangement was consummated; Kirby bid the property-off at $500. Wood and Griswold gave their note to the sheriff for the amount of Kirby’s bid, and, although Kirby’s judgment was not reached in the sale, they gave Kirby their note for $500, according to the arrangement. Mr. Griswold testifies :—
The next morning Mr. Wood saw me on the step — I think I went away the next morning on the morning train — on the front step of the homestead — and he told me he didn’t know what he got an interest in that house again for — the homestead; that he didn’t want it; would like to have me take it off his hands; and in the conversation that morning he stated to me that the Hewett judgment was a lien upon this interest that we had bought at sheriff’s sale, and I agreed to take the interest that morning; we had bought George’s interest; and agreed to give him — ; I told him there was an understanding that I supposed we were to have the balance of.the judgment;
Q. What judgment? A. Balance of a judgment against— that Kirby held to make up the thousand dollars; I told him I didn’t suppose we were going to give him the thousand dollars for the bid. and not get anything of the judgment, and I agreed to let Mr. Wood have the difference between the five hundred dollar bid and the thousand dollars that we paid for the property, and take it — take George’s interest — but the Hewett judgment, Mr. Wood said, was a lien upon it; and he agreed, in consideration of the five hundred dollars balance of the judgment and my taking the interest, that so far as I had gone I should not be liable; but he said I must look out for myself if I got any more of the homestead — any other judgments came up that I bid off, I must look out for them, but so far as I had gone — why, the Hewett judgment should not be recovered against me.
Q. You say “as far as I had gone ;” had you any interest at that time? No; I had no interest; I had bid this off for my wife.
Q. Repeat what he said. A. He said that so far as the interest that I already had in taking these — including this interest that I had that morning agreed to take — I should not be liable, or my wife should not be liable — we should not be liable.
Q. What were you to give him ? A. What did I give him ?
Q. Yes? A. I gave him the balance of the judgment that he should get from Mr. Kiilry.
Q. Do you know whether this judgment was assigned from Mr. Kirby to Mr. Wood ? A. I understand that it was.
Q. To whom was the conveyance made ? A. The conveyance was made to my wife.
If it be true, as we understand Mr. Griswold to say, that Wood and Griswold agreed jointly to take from Kirby the interest of George P. Cash at $1,000 ; if Griswold afterwards, in behalf of his wife, agreed with Wood to take that interest in severalty and pay the $1,000; if the Kirby judgment, with Griswold’s consent, was transferred by Kirby to Wood — and in consideration thereof it was agreed that Mrs Griswold, as far as she had gone, that is to say, upon- the interests or shares in the homestead she then held, should not be liable for the Hewett judgment, the contract thus shown being founded in a sufficient consideration, would, without doubt, contain all the requisites of a valid release. The transaction, as it is stated, involved all the interests Mrs. Griswold then had in the homestead; this was the subject matter of the contract; the parties were not bargaining as to the effect of a saving
The judgment is reversed, and a venire facias de .novo awarded.
