Hess's Estate, 150 Pa. 346

150 Pa. 346 | Pa. | 1892

Opinion by

Mb. Chief Justice Paxson,

The auditor rejected the claim of Frey’s executors on the ground that the bond in question was not sealed by John Hess; and upon the further ground that there was no consideration for his assumption of any liability for John Kendig. This ruling was sustained by the orphans’ court, and forms the subject of the principal assignment of error.

It appears that, on April 1, 1874, John Kendig borrowed from Frederick Frey $2,000, and gave his common bond, payable one year after the date thereof. It was alleged that several years thereafter Frey became dissatisfied^ and returned the obligation to Kendig with the request that he be furnished with an additional security. The latter procured the names of John Hess and Maris H. Kendig, who added their names to the bond, signing below the name of John Kendig. The bond with these additional names was then returned to John Kendig. John Hess died in March, 1888. The executors of Frederick Frey appeared before the auditor appointed to make distribution of the estate of John Hess, deceased, and made claim against the same for the sum of $2,000 as represented by the obligation above referred to.

The bond in question was the individual bond of John Ken-dig, with his individual signature and seal attached. There is no mention of the names of Maris H. Kendig and John Hess, the alleged sureties, in the body of the bond. Their names appear only at the bottom, and without seals.

It would be straining a point to hold that the seal attached to the name of John Kendig was the seal of the alleged sureties, or that it had been adopted by them. Bowman v. Robb, 6 Pa. 302, is not in point. In that case there was the written obligation of two parties which concluded with the words. “ witness our hands and seals.” There was but one seal, which was affixed to his name by the party who drew and first executed the same; and nearly opposite to this seal the other party signed his name; it was held that the obligation on its face furnished intrinsic evidence for the jury that the party last signing it had adopted the seal as it stood upon the paper. The distinction between that case and the one in hand is palpable. The instrument upon its face, with the words “ witness our hands and seals ” was certainly some evidence, and sufficient to go to the jury, of a sealing by both parties. Whereas, in the case in hand, there was nothing upon the face of the bond from which a jury would have the right to infer that John Hess had adopted the seal of John Kendig. Aside from this, the most that can be urged is, that the adoption of the seal was a question of fact to be submitted to a jury, or, in this case, to the auditor. It was so submitted, and it was found against the appellants. This finding was sustained by the court below. It is an established rule that the finding of an auditor upon the facts, which has been approved by the court below, will not be disturbed on appeal, except for flagrant error. Burroughs’s Appeal, 26 Pa. 264 ; Lewis’s Appeal, 127 Pa. 127. There was no such error in the present instance. On the contrary, we think the finding of the auditor fully justified by the evidence.

The only remaining question is whether there was any consideration moving from John Hess to Frederick Frey, the obligee of the bond. Upon this point we have no difficulty. The authorities are uniform that the promise to pay the debt of another, although it be in writing, is nevertheless of no force unless founded upon a consideration. It is of itself a distinct contract, and must rest upon its own consideration: 2nd Parsons on' Contracts, pages 6 and 7; Cobb v. Page, 17 Pa. 469; United States v. Linn, 15 Peters, 290; Rumburger v. Golden, 99 Pa. 34. It is useless to multiply authorities upon so plain a proposition. There was no consideration of any kind for Mr. Hess’s signature. The bond was overdue, and there was no agreement to extend the time of payment. Suit could have been brought upon the bond the day after Mr. Hess signed it.

The decree is affirmed and the appeal dismissed at the costs of the appellants.