75 Pa. Super. 101 | Pa. Super. Ct. | 1920
Opinion by
The plaintiff brought this action against James Mc-Crory and W. F. Workman, upon a bond in which the defendants were the obligors. Judgment was taken against McCrory for want of an affidavit of defense.
The fact that a contemporaneous oral agreement, of some kind, was entered into by this appellant and the authorized agent of the plaintiff was not seriously questioned at the trial, although the parties were at variance as to the details thereof. It is not contended by the appellee that the evidence produced by appellant, in support of his allegation that there was a contemporaneous parol agreement was not such as to require the submission of the question to the jury. Much testimony was
The plaintiff, in his second point, requested the court to charge: “If you believe that the defendant executed the bond in suit, as a friendly accommodation to Mc-Crory or because the defendant, Workman, was interested in the hotel in question, he would be liable, even if the debt were not his debt.” The point was bad in form, as not limiting the jury to the consideration of the evidence. There was no doubt, under the evidence, that the debt was that of McCrory and that Workman’s only lia
The evidence introduced by the plaintiff, the appellee, relating to the agreement to assign the judgment, was to the effect that, during the negotiations, the parties had arrived at an agreement upon the terms of the execution and delivery of the bond and mortgage, and that the matter of the assignment of the Dinch judgment to Workman came up as an afterthought. The court in its charge, after reciting this evidence, said: “In other words, the plaintiff contends that that was simply a gratuity, or thing which the plaintiff voluntarily agreed to do upon his part, but without any consideration moving.” Continuing to discuss this evidence the court said: “Even if there was a promise on the part of Mr. Dinch......that the Dinch judgment would be assigned to Mr. Workman, yet if that promise was a mere gratuity, made after the agreement with respect to the bond and mortgage had been consummated between the parties, then it was not such a parol contemporaneous agreement as is contemplated by the law; and that would not defeat a recovery in this suit.” In instructing the jury, as to this particular feature of the case, the learned judge of the court below entirely lost sight of the principle that, under the statute of frauds, this appellant could not be called upon to pay the debt of McCrory until after he had signed the bond obligating him to pay that debt. This appellant had the right, under the law, to shift his position as often as he saw fit during the oral negotiations, so long as he did not induce the plaintiff to enter upon any course of action which might prejudice the latter. Even if he had verbally agreed to sign the bond upon conditions stated, yet he had the right to insist upon any new terms he thought necessary for his protection, down until the
The judgment is reversed and a jnew venire awarded.