140 Pa. 405 | Pa. | 1891
Opinion,
When this case was here on writ of error to the judgment against defendants for want of a sufficient affidavit of defence, we held that the averments contained in the affidavit were sufficient to carry the case to a jury, and, if defendants succeeded in passing them, they would be entitled to a verdict: Kilpatrick v. B. & L. Ass’n, 119 Pa. 30. Without referring specially to the evidence introduced by the defendants on the trial, it is sufficient to say that it tended to prove every material allegation of fact contained in the affidavit referred to, and, having been fairly submitted to the jury, under proper instructions, the verdict for defendants must now be regarded as a finding of those facts in their favor.
The evidence referred to in the first, second, and third spec
In view of the testimony, partly written and partly oral, bearing on the authority of Mr. Bliss, the solicitor of the association, to receive the Beebe check in payment of the lien against the house and lot sold and conveyed by Troth to Kilpatrick, etc., there was no error in the instructions given in those portions of the charge recited in the fourth specification. It was shown, among other things, that on June 5,1885, after the mortgage in suit was executed, Troth, the mortgagor, sold one of the lots to Kilpatrick for $2,200, clear of all encumbrances. When the deed was about being delivered, Troth, Kilpatrick, and George Beebe met at the office of the association, and were there informed by Bradley, its secretary, that the payment of $1,380.20 would be required to obtain a release of the association’s lien on the lot that Kilpatrick was purchasing. Thereupon Troth directed Beebe, in whose hands he had placed $1,500 for that special purpose, to pay Bradley the said sum of $1,380.20, in satisfaction of the association’s claim against the lot in question. Bradley, instead of receiving the money, directed Beebe to pay it over to Bliss, the solicitor of the association. That was done on the following day by giving him his check on the Chester National Bank, where he then had and continued to have funds on deposit applicable to the payment of the check until the first of August following. But, instead of presenting the check within a reasonable time, Bliss held it until September, after Beebe had withdrawn the money and become insolvent. In consequence of the delay in presenting the check and Beebe’s insolvency, the money was lost, without any fault of Kilpatrick, who had reason to believe that Beebe’s check had been presented and paid.
On the day the solicitor received the check, he reported to^ the association in writing, inter alia, as follows: “ I have received to-day from George Beebe a check for $1,380.20, which I understand is intended to secure a release of the mortgage against one of Mr. Troth’s houses,” and asked for instructions as to what he should do. The minutes of the association contaiu the following entry: “ The solicitor’s report was presented and accepted. The solicitor stated that it was proposed to pay off the loan on the eastern house, which this association gave to
In addition to the oral and written evidence above referred to, there was other verbal testimony tending to show an understanding that the lot purchased by Kilpatrick should be released on payment of the sum named by the secretary o£ the association, and that the check was accepted by the solicitor as payment, etc. Beebe testified, in substance, that part of the money which he had on deposit when he gave the check was the proceeds of another mortgage which he had placed on the lot, with the understanding that it should be a first lien, and in order to make it so it was necessary that the association’s claim should be paid; that he gave the check for that purpose, and it was so understood by the solicitor. If the written evidence in question had stood alone, it would have been the duty of the court to have construed it; but, in view of the oral testimony relating to and necessary to be considered in connection with the written evidence, there was no error in submitting the whole to the jury, under proper instructions. When matters of fact, depending on oral testimony, are connected with and necessary to a proper understanding of the written evidence, the court is not bound to construe the latter as though it stood alone. An admixture of oral and written evidence draws the whole to the jury: Denison v. Wertz, 7 S. & R. 372 ; Sidwell v. Evans, 1 P. & W. 383; McGee v. Northumberland Bank, 5 W. 32.
There was no error in the answers of the court to the plaintiff’s points recited in the fifth to ninth specifications, inclusive, nor in the answer to defendant’s first point covered by the tenth specification. The remaining specifications are not sustained.
Judgment affirmed.