100 Pa. 75 | Pa. | 1882
delivered the opinion of the court, April 17th 1882.
The parties agree that De Walt S. Kutz became indebted to Abraham Kieffer in the sum of ten thousand dollars and interest thereon; that Kieffer became alarríied and apprehensive that the debt was not sufficiently secured ; that Kutz .on April 29th 1873, executed an assignment of the legacy to Kieffer; and that the full amount of said indebtedness has been paid. They disagree as to the character of the assignment, one averring that i t was collateral security for the indebtedness, the other, that it was absolute for a consideration paid in money: and here is the issue.
The assignment was written by William Sclunel, in the office, and under the direction of A. B. Wanner, Esq., and attested by A. B. Wanner and Washington Bichards. It in no way appears that any other similar paper was executed between these parties, or that Kutz owed anything else to Kieffer than the judgments set forth in the bill. Outside the assignment itself, there is not a particle of evidence that Kieffer paid any money for it. The defendants offered no testimony, and the inquiry is, whether the plaintiff established his averment by sufficient proof.
A. B. Wanner testifies that Kutz and Kieffer came into his office and asked him to make this assignment, it was drawn and executed, no money was paid at the time, and his recollection is, “the assignment of this legacy was made for the purpose of securing Kieffer for what arrearages of interest, &c., that Be Walt owed him, and that Mr. Kieffer said at the time that if Be Walt Kutz would pay him what he owed him, .then this money was to come back to him again, but if he did not all that was in arrears was to be deducted from it.” . . . . “ Kieffer was the one who said the assignment was to be collateral. This was all said in the presence of Be Walt Kutz and he did not dissent.”
Valentine Kieffer says that about the middle of April, 1873, he took Kieffer over to Kutz’s and on the wray asked him what he was going for : “He said he had a judgment against Kutz for money loaned, and he was afraid it would not reach. He said BeWalt had an inheritance to get after his mother’s death, which he was to assign to him as collateral security for the payment of the judgment.” In answer to a question he said that Be Walt Kutz was willing to make the assignment. “He told me further in answer to my question, supposing Be Walt’s estate would reach to pay this off, what would you do with this, that then he would give it back to him.” «
Joel Hoch testifies of conversations with Kieffer before the making of the assignment when he was considering whether he would purchase the legacy or take it as collateral. Afterwards
Samuel Kauffman says, that in 1873, or 1874, he had conversation with Kieffer when he spoke of Kutz being back with the interest. Witness'asked if he did not have security, and he replied that he had collateral security.
The credibility of these witnesses is unassailed and their several statements were emphasized in cross-examination. Their testimony, touching the issue, in the light of the circumstances and admitted facts, convinces us of the truth of the plaintiff’s averment, notwithstanding the ingenious argument of the master and less positive opinion of the learned judge of the Common Pleas to the contrary. It seems to us that the only way to avoid such conviction that the legacy was assigned as collateral security for the debt, as would move a chancellor to act, is to exclude a part of the evidence as incompetent. Is there any rule requiring that this shall be done ?
It is proved by one witness that at the time of the execution of the assignment, the parties were present race to face, and that the assignee said it was made for the purpose of security, and if the assignor paid what he owed him then this money was to go back. What could be more clear, explicit and unequivocal ? It brings the case precisely within the rules recognized in McGinity v. McGinity, 63 Pa. St. 38. The purpose was security, the indebtedness to be secured was the judgments, and in that was the consideration. If this statement be true it excludes belief that a money consideration was paid by the alarmed creditor, who desired additional security. In a prior conversation with his nephew, Kieffer related the terms of his arrangement with Kutz, substantially the same as proved at the time the assignment was executed. That is pertinent as corroborative testimony, for the evidence is clear that the arrangement was the same at the execution of the writing. Previous conversations may fairly be supposed to have been drawn to a conclusion by the written agreement, and are inadmissible for the purpose of correcting the writing where there is no evidence of what occurred at its execution : Cozens v. Stevenson, 5 S. & R. 421. But when there is direct proof of an additional contract at the time of executing the writing, a previous like conversation ma}7 be corroborative; its strength' or weakness depending upon circumstances. The subsequent declarations were competent, and when Kieffer spoke of the collateral he had received from Kutz, it is plain that he meant the assignment. We are advised of no rule which, excludes such previous or subsequent declarations as were proved, and taking them with the admitted facts, they strongly corroborate the witness who was present when the parties consummated their contract. The bill is sustained by
Tlie finding of facts by a master, sanctioned by the approval of the court below, will not be set aside except for plain error: Kisor’s Appeal, 62 Pa. St. 428. Whore the testimony is conflicting, although the merits may appear contrary to his finding, if it has been approved by the court below, as a general rule this court will not reverse. But, where the questions decided grow out of inferences from clearly proved facts, or conclusions derived from reasoning, the report has not the same weight: Sproull’s Appeal, 71 Pa. St. 137; Phillips’ Appeal, 68 Pa. St. 130. Here there is no conflicting testimony; no impeached witness. We are of opinion that the master erred in his conclusion that the evidence was insufficient to move a court of equity to decree that the legacy was assigned as a collateral security, and that such error was so grave it must be corrected.
Decree reversed, and now it is considered and decreed as follows :
That the defendants, Polly Kieffer, Wellington B. Griesemer and Sarah Griesemer his wife, and . George S. Kieffer, within thirty days from this date, assign and transfer all their title, interest and estate in the legacy which was assigned by David S. Kutz to Abraham Kieffer, by writing dated April 29th 1873, unto George S. Kutz, administrator of DeWalt S. Kutz, deceased, in trust for the estate of said deceased.
That the defendants pay the costs.
The record is ordered to be remitted for the enforcement of this decree.
