239 Pa. 135 | Pa. | 1913
Opinion by
This was an action brought to recover on a written contract in which the defendant agreed to become guarantor on certain promissory notes of the American Box Company. The verdict was for the plaintiff and the defendant has appealed.
The L. L. Satler Lumber Company (the plaintiff), and the American Lumber and Manufacturing Company, two separate and distinct corporations, had each sold lumber to the American Box Company, and each held a series of notes of the latter company representing their respective claims; but they had no connection with one another in such sales or in the dealings which gave rise to the case under review. On November 20, 1907, the claim of the plaintiff amounted to about $3,000 and that of the other lumber company to about $3,200. The defendant, Joseph Exler, likewise was a large creditor of the box company, for moneys loaned to it during the summer of 1907, aggregating about $23,000, and in addition thereto he had endorsed one of its notes in the sum of $2,000. Exler held an unrecorded mortgage on the plant of the box company for $20,000 and a judgment note for $3,000, on which one Theodore Geiselhart was liable as a joint-maker; this note had not been entered of record.
The testimony, viewed in the light most favorable to the plaintiff, as the verdict shows it was, entirely justifies, the following abstract from the appellee’s statement of the case: — “The notes of the plaintiffs had matured
The defendant testified in a vague and general way that he was induced to sign the guaranty by false and fraudulent representations concerning the financial condition and the value of the property of the box company, made by Mr. Johnston, the president of the American Lumber Co.; that in making the alleged representations the latter acted not only for his own corporation but also for the plaintiff company. Mr. Johnston testified that he had no knowledge and never pretended to have
But, aside from the question of Johnston’s alleged independent declarations, the appellant contends that some of the figures contained in the written statement were false in that they represented inflated values, and that, inasmuch as Johnston read these figures at the meeting to show the good condition of the box company and thereby to obtain the guaranty, this in law was an adoption thereof and constituted a fraud upon him irrespective of the former’s knowledge of their falsity. As to this the learned court below in an opinion refusing a new trial, truly says, “that is not the defense set up in the affidavit.’? Under the practice in Allegheny County the issues are defined by the statement of claim and the affidavit of defense. In the defendant’s affidavit of defense there is not a single reference to the written statement prepared by the book-keeper of the box company or its use by Johnston, and no one reading the affidavit can doubt that the intention was to aver a fraud in fact, i. e., that Johnston had by Ms own independent declarations knowingly deceived the defendant. Had the defendant’s affidavit presented the defense now relied upon, the plaintiff would have had to prepare its case along different lines, in that it would have been obliged to show that the figures in the written statement were substantially correct, and it could not have depended upon Johnston’s lack of knowledge of
We are not impressed that error was committed by the refusal of the offer to show that Johnston had said that his lumber company would put the box company into bankruptcy if the defendant did not sign the guaranty, and had “stated as a fact that this would destroy the lien of the defendant’s mortgage.” Concerning this, the court below properly held, “The representation that in case of bankruptcy the defendant’s unrecorded mortgage would not be a lien, if made, was a bald representation of a conclusion of law....... It is not the exceptional case where a statement of law is really one of fact, or a mixed statement of law and fact.” The mere designation of Johnston’s alleged representation as a statement of “fact,” could not change the character of the thing offered to be proved. The defendant’s offer
During the course of the trial the defendant swore that he was not a stockholder in the box company, and before the other side gave testimony to contradict this, he made an offer of the record of an equity proceeding in the United States Court between the trustee in bankruptcy of that corporation and himself, wherein it was held as a matter of law that he was not such a stockholder; the offer was refused, and this is assigned for error. The point as to whether or not the defendant was a stockholder in the box company, was a side issue. He admittedly held quite a block of the stock in his own name as collateral for his loan, and it was undoubtedly to his interest to keep the company out of bankruptcy as long as possible. But it is not necessary to determine the question of the admissibility of this record, for as offered it was merely cumulative evidence on a point which was not a main issue, and in no event could its rejection be classed as reversible error. As to the offer of the record for the purpose of showing that it had been therein, adjudicated that the mortgage held by the defendant was a valid lien on the box company’s plant, and thereby to prove that Johnston’s alleged representations concerning the effect of the latter’s bankruptcy upon the mortgage in question were not true, it is sufficient to say that at the time of the representations the facts in relation to the mortgage were materially different from those existing at the date of the alleged adjudication, and to add that we have already ruled that
We do not view the guaranty as a joint contract with the two lumber companies, and we cannot agree with the appellant’s contention that any action thereon would have to be by the companies jointly. The court below reached the proper conclusion on this branch of the case when it stated, “The contract is several....... The sum of $3,000 is......the fixed limit of liability and means not to exceed $3,000.” At the time of the execution of the guaranty each of the lumber companies held four notes of the box company; those of the plaintiff being drawn for $761 each and those of the other company for $811 each. The plaintiff’s notes were endorsed over to and held by it individually and the four belonging to the American Company were endorsed to and held by that company individually. As we construe the contract, the intention was to guarantee this paper for the benefit of the several holders thereof in the proportions to which they might respectively be entitled; it was not in any sense for the benefit of the two companies jointly. Whether a contract is joint or several depends upon the nature of the interest of the parties and the intention at the time it was made, and the rule is that if the consideration moves from the promisees separately, a promise to them is prima facie several: 2 Page on Contracts, Sec. 1142. The writings in the case consist of the notes and the contract of guaranty; the notes are specifically referred to in the contract and the defendant therein agrees to become guarantor “on the above paper”; when these writings are taken together it is apparent that the contract was not intended as a joint one. Although the lumber companies had a common interest because each held the notes of the box company, they were not connected in any way, and they had no joint interest to be protected; neither company could have renewed the notes of the other, and there was nothing to suggest that it ever was the intention
After a trial on the merits the prime question is not, was the case tried with strict correctness in every respect, but was substantial error committed in any material particular. We have read the well-considered argument of counsel for the appellant and all of the voluminous record, and we have examined the numerous authorities cited; while the charge is long and discursive and may be open to just criticism in some particulars, taking it as a whole we are not convinced that the trial judge fell into reversible error. The main issues were put to the jury in such a manner that they must have understood the controlling questions they had to decide, and as before noted, counsel for the appellant twice were expressly given the opportunity to have fuller statements of their position placed before the jury, but failed to take advantage thereof; under such circumstances we are not inclined to look at a charge with an overly critical eye. We shall merely add that in view of the facts in the present case we do' not think any harm was done by the trial judge in stating to the jury that the parties were “dealing at arm’s length.” This is not the. ordinary case of undue advantage taken of a surety; the parties dealt on equal terms and there was no relation of confidence between them; Johnston represented a creditor seeking to' obtain security for a debt due by a corporation which the defendant had an interest to support; the representatives of that corporation were present at the time Johnston made his alleged representations, and the facts concerning its condition were equally available to all parties. (See Fulton v. Hood, 34 Pa. 365, 371.)