128 Pa. 183 | Pennsylvania Court of Common Pleas, Clinton County | 1889
Opinion,
The contract upon which this suit is founded is an agreement in writing, but not under seal, the purport of which is, that the Building and Loan Association of Lock Haven, Pa., will keep J. S. Furst & Sons harmless from, and satisfy the balance of a mortgage given by J. S. Furst & Sons to the Mutual Saving, Loan & Building Association of Clinton County, Pa. The writing, which is a receipt to J. S. Furst for a transferred judgment of Furst against Henry Sperring and a check-of Furst for $113.88, concludes with a statement of the agreement to save harmless. The agreement is between Furst and the Building & Loan Association exclusively. The Mutual Saving etc. Association is no party to it, in any sense whatever. That association held, and thereafter continued to hold its mortgage against Furst & Sons, with which it did not part. The last money due on this mortgage matured on September 30, 1878. The agreement in suit was made June 16, 1877. This action was brought December 12, 1885. The cause of action, which was the non-payment of the mortgage by the defendant corporation, commenced on the first day of October, 1878, and when this action was brought on the agreement to save harmless, upwards of seven years had elapsed. The stat
It is necessary to say that the suit was originally brought in the name of the Mutual Saving, Loan & Building Association alone. That corporation was the holder of the mortgage against Furst & Sons. As that company, however, was in no sense a party to the contract in suit, which was made only between J. S. Furst, individually, and the defendant corporation, it was soon perceived there could be no recovery in an action brought in its name. This being so, the counsel for the plaintiff, on March 8,1887, applied for an amendment, by which the name of John S. Furst, for the use of the Mutual Saving, Loan & Building Association, was substituted as plaintiff for the name of the association alone. This amendment was allowed by the court below, but only after objection and exception by the defendant. It is difficult to see how this amendment could have helped the plaintiff’s case, as the statute was a complete bar at the time it was made; and it is perfectly well settled that amendments will not be allowed when they deprive the opposite party of any rights: Kaul v. Lawrence, 73 Pa. 410; Trego v. Lewis, 58 Pa. 463; Kille v. Ege, 82 Pa. 102. But, as in our view of the case, there never was a payment sufficient to bar the statute, it is unnecessary to rest the decision upon that ground. The learned court below held, rightly as we think, that the introduction of Furst’s name as plaintiff did not help the case.
In order to appreciate correctly the force of the facts relat
Furst, however, was a depositor in the bank and in that capacity he received a number of dividends upon the amount of his deposit. Being examined as a witness on the trial of this case, he testified that on October 4, 1880, he paid to Charles Corss, who was then the solicitor for the Mutual Saving, Loan & Building Association, $91.10, and that on March 14, 1882, he made another payment of $22.38 also to Mr. Corss. He further testified that he paid these sums on account of the mortgage held by the association against Furst & Sons.' These two payments are indorsed upon the check by Mr. Corss as
Judgment affirmed.