38 Pa. Super. 356 | Pa. Super. Ct. | 1909
Opinion by
Mark Hoffa conveyed to his brother William a farm containing over 100 acres, for the consideration therein named of $1.00. This farm was shown on the trial in the court below, in various ways, to have been worth $3,000 or over, and it appeared from the testimony that that amount, or a sum approximating it, was realized during the lifetime of the brother, to whom it was conveyed, and by his heirs since his death. At the time the deed was executed and delivered it was said in the presence of the justice of the peace who took the acknowledgment: “That other paper we will make, too, before long.” Subsequently the grantee in this deed, on several occasions, to different persons communicated the fact variously stated by the witnesses that,
The defendant asked for binding instructions and subsequently moved for judgment n. o. v., both of which were denied. The point and motion were based upon certain propositions which are raised by the plaintiff’s points which were affirmed, and those of the defendant which were denied, and exceptions to certain parts of the charge, the same being embraced in fifteen distinct assignments of error. These were, first, that the plaintiff, being a stranger to the alleged contract between his brothers, Mark Hoffa and William Hoffa, cannot recover in this suit; second, that the alleged contract between Mark Hoffa and William Hoffa not having been signed by William, there can be no recovery in this case; third, that: “There being no direct proof of a contract between John Hoffa, the plaintiff, and William Hoffa, and nothing more than alleged declarations made by William Hoffa to strangers, in the absence of the plaintiff, the plaintiff cannot recover,” and, fourth, that: “The declarations alleged to have been made by William Hoffa, as proved in this case, are too vague, indefinite and uncertain to sustain a recovery in this suit.”
As to the plaintiff’s right of recovery. In Blymire v. Boistle, 6 Watts, 182, regarded as a leading case upon this subject, it was said by Mr. Justice Sergeant: “Numerous cases are to be found in the books respecting the right of a third person to sue on a promise made to another, and they are not all reconcilable with each other. See 1 Vin. Abr. 333-337, and the note to Pigot v. Thompson, 3 B. & P. 147. They seem, however, to warrant this distinction, that, if one pay money to another for the use of a third person, or having money belonging to another, agree with that other to pay it to a third, action lies by the person beneficially interested. But where the contract is for the benefit of the contracting party, and the third person is a stranger to the contract and consideration, the action must be by the promisee.”
This distinction has been maintained in the later cases. In
In Freeman v. R. R. Co., 173 Pa. 274, a case tried by Judge Thayer, this distinction is clearly maintained and the Supreme Court, on appeal, affirmed the judgment of the court below in a per curiam opinion.
In the late case of Moran v. Munhall, 204 Pa. 242, a case which was twice argued in the Supreme Court and seems to have been thoroughly considered, the facts, as stated by Mr. Justice Dean, taken from the opinion of the trial judge in the court below, are as follows: “Patrick Moran was the owner of a lot of ground in the city of Pittsburg, having thereon erected a brick dwelling house. This property he conveyed on September 21, 1896, to Michael Munhall for the consideration of $10,100. This consideration was made up as follows: mortgage to the Pennsylvania Company $8,000; note of Moran held by Munhall $1,500; note given same day by Munhall to Moran $600. The title taken by Munhall remained in him until August 1, 1899, when he sold and conveyed the property to Stolzenbach for the consideration of $16,000. Up until that date Moran remained in possession without paying rent, but paying the taxes and keeping up repairs, paid insurance and for improvements, the whole amounting to $1,252.97. At the time the deed was delivered, it was agreed orally between Moran and Munhall that the property should be sold as soon as possible; that both would use their best efforts to make a sale and any surplus remaining after Munhall was paid in full should be paid to Moran. After the sale was made to Stolzenbach, Mun-hall sent to Moran $500, but refused to make any further payment. Deducting this from the amount of Stolzenbach’s purchase money, left a balance of surplus in Munhall’s hands of $3,923.84. This amount Moran claims as still payable to him, under his oral agreement, and he brought this action of assumpsit.” He recovered in the court below the judgment, which was affirmed in the Supreme Court.
In that case as in this the agreement to pay more than the consideration named in the deed was in parol. There, it is true, the party to the contract was also the party beneficially interested and brought the suit. Here, however, the party interested in the consideration brings the suit and is entitled to
As to the point that there was no direct proof of the contract between the brothers who were parties to the deed and that the same depended entirely upon the declarations of William Hoffa, the defendant’s decedent, we are of opinion that the latter were not only competent evidence but that they sufficiently established the obligation of William Hoffa to pay to the plaintiff and to his sister the sum of $1,000 each. Such an admission was made to at least four different witnesses. They do not agree, it is true, as to the exact language used by William Hoffa, but as to the fact there can be no doubt, if the witnesses are believed. Indeed, the fact that the language used was different on the several' occasions, when William Hoffa communicated with the several witnesses, and that their testimony does not agree as to the particular language used is rather in favor of, than, against, the truthfulness of their testimony.
In Galbraith et al. v. Green et ux., 13 S. & R. 85, Mr. Chief Justice Tilghman says (p. 92): “What a man says against his own interest may be safely believed; but it is not safe to credit him, where he is advocating his interest. Upon this principle the rule of evidence is founded — a man’s confession against himself, is evidence — but his declarations, in favor of his own interest, are not evidence.”
In McGill v. Ash, 7 Pa. 397, Mr. Justice Coulter, who delivered the opinion, says: “I do not know any higher, or more reliable evidence of a fact, than the admissions or declarations of a party who is to be prejudiced, freely and voluntarily made. It is of no consequence whatever, that these admissions and declarations were made after the fact. That only gives them more point and potency.”
The value of such testimony has been so many times referred to and the rule is so firmly established that it is rather surprising that the question should be raised at this late day. The declarations of William Hoffa were undoubtedly competent evidence and were sufficient, if believed by the jury, to charge him, if living, and his estate, when dead, with the amounts admitted by him to be payable to the plaintiff and his sister, as a
The facts connected with the execution and delivery of the deed and of all that followed were carefully referred to in the charge of the court to the jury and, in submitting the case, the court said: “Consider the testimony in the case carefully, and I say again if you find that there was such a contract you may find in favor of the plaintiff. If you find that there was not such a contract, then you find in favor of the defendant.”
We have not considered the assignments of error seriatim, but what has been said covers the points which have been raised and discussed by the appellant and meets the substance of alleged error, as contained in all of the assignments. We find no merit in any of them and they are, therefore, all overruled.
judgment affirmed.