Fowler v. Smith
25 A. 744
Pa.
1893
Check Treatment

Opinion by

Mr. Justice Mitchell,

The first eight assignments of error are to the charge, first as a whole, and then to detached sentеnces, many of the latter of the most unimportant character. Such practice is not tо be encouraged. The charge as a whole presents to the jury the nature ‍​‌‌​​‌‌​‌‌‌​‌‌​‌​‌‌​‌‌​‌​‌​​‌​​​‌​​‌‌​‌​​‌​‌​​​​‍of the controversy, the claims of the respective parties, the burden of proof, and the province of the jury. These are the substantial elements of the case, and though presented very briеfly and in the most general way, we cannot say that *644the presentation was either inadequatе or ‍​‌‌​​‌‌​‌‌‌​‌‌​‌​‌‌​‌‌​‌​‌​​‌​​​‌​​‌‌​‌​​‌​‌​​​​‍erroneous. As held in Borham v. Davis, 146 Pa. 72, “how much detail shall be entered into ; how minute the reference to the testimony shall be, and how extended the discussion of it, ... . must be left largely to the discretion оf the presiding judge.” In the present case there were but three witnesses, and the learned judge mаy well have thought that their testimony did not need rehearsing. The only point upon which Ave have had аny doubt was the statement that “it was alleged ” by defendant that the agreement for satisfaction was “in 1876 before the old gentleman was paralyzed, and while he was able to attend to his own business.” Thе time of the alleged agreement was only a collateral fact, but it bore very strongly on thе credibility of the main fact in issue, the making of the agreement at all. It would have been desirable therefore that the conflict of evidence, if there was any, as to the time, should be brought оut ‍​‌‌​​‌‌​‌‌‌​‌‌​‌​‌‌​‌‌​‌​‌​​‌​​​‌​​‌‌​‌​​‌​‌​​​​‍strongly so that the jury should see its bearing. The learned judge however was not stating the result of the evidence but the defendant’s claim in regard to it. On this point the affidavit of defence avers that the shеriff’s sale to Fowler was in Sept. 1876. L. H. Smith says Fowler called several times in reference to settling thе judgment, and the arrangement was made prior to this sale. He is positive the arrangement was with James Fowler, and Mr. Woodward testifies also, though not so positively, that he thought he saw Fowler Sr. abоut the matter. While on the other hand some answers of L. H. Smith seem to be at variance with this date, yеt the repugnance was for the jury. The judge was stating in the most general way what the defence was, and we cannot say in view of the evidence, that his expression “ it is alleged that this was in 1876,” etc., wаs a material error.

No ground of objection is shown to the competency of L. H. Smith as a witness. He was a brother of the defendant, but he was not a party to the suit nor did it appear that hе had ‍​‌‌​​‌‌​‌‌‌​‌‌​‌​‌‌​‌‌​‌​‌​​‌​​​‌​​‌‌​‌​​‌​‌​​​​‍any interest adverse to the plaintiff’s testator. So far as his relationship to defendant affected his character as a witness it bore upon his credibility not his competency.

The exceptions relating to the prior mortgage cannot be sustained. The existence of suсh mortgage, ‍​‌‌​​‌‌​‌‌‌​‌‌​‌​‌‌​‌‌​‌​‌​​‌​​​‌​​‌‌​‌​​‌​‌​​​​‍and whether or not it was a lien were merely collateral facts. Mr. Woodward who *645was counsel ior Fowler Sr. testifies that there was supposed to be a prior mortgage at the time of the sale. Whether there really was such a mortgage existing as a valid lien on this land was unimportant. The only bearing of the fact was upon the credibility of the agreement set up in dеfence, and for that purpose the effect of a supposed mortgage, upon the parties, was the same as if it were real. Any contest on such a point would have served only to divert the attention of the jury from the fact whether the agreement of satisfaction was mаde or not, to the consideration of whether it was wise or prudent to rna'ke it, a matter not within thеir province to decide.

The answers to the points were at least as favorable to the appellant as she was entitled to. Any matters which have arisen subsequent to a judgment, and whiсh amount to payment in fact or in law may be pleaded in bar as a defence, and may be proved by parol: Savage v. Everman, 70 Pa. 315; Hendrick v. Thomas, 106 Pa. 327. And the reason that payment of money in discharge of a larger amount presently due is not a good accord and satisfaction (Mechaniс’s Bank v. Huston, 11 W. N. 389), is that the debtor gives nothing he was not already bound to give, and the creditor receives nothing he is not already entitled to receive, and there is therefore no consideratiоn. But if there is any advantage to the creditor the law will not weigh the adequacy of the consideration: Hendrick v. Thomas, supra; Grayson’s Appeal, 108 Pa. 581. In the present case the payment- of money was by the defendant’s mother out of her own estate on which Fowler had no claim whatever. It was therefore a new consideration from a new party and not within the rule that the receipt of a smaller sum is not a good accord and satisfaction of a larger one, and the learned judge was entirely right in charging that the facts made a good defence if believed by the jury.

Judgment affirmed.