137 Pa. 633 | Pa. | 1890
Opinion,
That there were some conversations between the parties in regard to the impending sheriff’s sale is unquestionable, but that -they amounted to an agreement, the subsequent breach of which, even fortified by the prevention of Houseman from bidding, would constitute a trust ex maleficio, is by no means clear. By plaintiff’s own version, the terms were extremely indefinite; and, as the final conversation was in the presence of counsel for both parties, the inference is very strong that it was the failure to agree on some essential point that induced Mr. Cowan to lay down his pen again after having taken it up, as plaintiff says, to put the matter in writing. But plaintiff’s version, indefinite as it is, is denied positively by defendant; and, if the weight of the testimony at the trial is with plaintiff, the conduct of the parties, on the other hand, is clearly more consistent with the account given by the defendant. Taken as a whole, the case is very similar to, and in some respects not so strong as Kimmel v. Smith, 117 Pa. 183, and falls short of the measure of proof required in such actions.
There is also another ground fatal to plaintiff’s recovery. If he ever had a right of action, he lost it by inexcusable delay. The sale took place in May, 1879, and this suit was not brought until 1887. Plaintiff, by his own testimony and his wife’s, had notice within four or five weeks from the sale that defendant refused to abide by the alleged agreement. Why did he wait to bring suit, for eight years, and until the witnesses who could have made the whole matter absolutely clear, Cowan and Hazlett, the counsel in whose presence he says the agreement was made, were both dead? The learned judge below,
Judgment reversed.