114 Pa. 603 | Pa. | 1887
delivered the opinion of the Court,
The preliminary examination of the witness Friedman disclosed the fact that he had been employed by Kessler, one of the plaintiffs, as counsel, to prepare the contract between the plaintiffs and Bartheld. He testified to the fact of the employment and the preparation and execution of the contract and judgment note, to the payment by Kessler for his professional services and as to who was present at the time of execution. The defendants, who were no parties 'to that
In regard to the other assignments of error in relation to the character and effect of the contract, as ruled by the court below, we are equally clear there was no error. It must be borne- in mind that the property in question never was the property of Bartheld at any time before'the contract was made, it was not purchased by him nor paid for with his money. On the contrary the undisputed testimony is that the property was furnished by Kessler & Schlather, who procured it from other persons and paid for it with their own money. This being so the title would be conclusively in them unless it was divested by the operation of the contract between them and Bartheld, or by some matter in pais which clothed the transaction with a quality of fraud upou creditors. The latter of these subjects was duly-nommitted to the jury by the court with proper instructions tohrhe-effect that if there was an intent on the part of Kessler & Schlather to sell the property to Bartheld for $3,000 and wait on him for the payment of the money, then the title would pass to Bartheld and his creditors could seize it. The verdict of the jury disposes of this part of the case of the defendants because it finds the facts against them. As to the effect of the written contract itself it is not possible in our judgment to regard it as a sale in any view that can be taken of it. By the first clause Bartheld agrees to commence and carry on a liquor and restaurant business upon certain premises named. The second clause recites that as Bartheld has no capital he contributes nothing to the business, and agrees to carry it on in the name and style of “ George W. Bartheld, agent.” By the third clause Kessler & Schlather agree, in consideration of Barthold’s service, to expend $3,000 in fittiqg up and furnishing the place with all necessary fixtures’ and stock, and Bartheld “positively agrees ” that all the
Judgment affirmed.