McCann v. McCrea

18 Pa. Super. 456 | Pa. Super. Ct. | 1901

Opinion by

William W. Porter, J.,

The defendant, intending to construct a number of houses, entered into a written agreement with the plaintiff to do the work of roofing. For this the latter was to be paid partly in cash and, as provided in the copy of a written agreement appended to the statement of claim, “ five hundred is to be in a second mortgage on one of said houses, having a lot thereto of forty by one hundred and fifty feet, said mortgage to be at the rate of six per cent per annum, and the house on which it is given to be clear of encumbrance, only a first mortgage of fifty-five hundred dollars,” etc. The cash consideration was paid. The plaintiff sues for $500, alleging that a mortgage as contemplated by the agreement was not given to him. The first assignment alleges that error was committed in permitting the plaintiff to show that the bond and mortgage which were tendered were not .those of the defendant. The agreement was not clear in respect to the person by whom the mortgage was to be created. The plaintiff alleges that it was to be made by the defendant himself. The defendant alleges that there was no such agreement. The equivocal phraseology of the agreement opened the door to testimony to explain the ambiguity. The testimony was admitted and the question thereby raised was submitted by the court below to the jury. Herein was no error.

The plaintiff alleged that he was not obliged to accept the mortgage which was tendered to him on June 28, 1896, inasmuch as the property covered by it was subject to a mechanic’s lien in addition to a mortgage of $5,500. The second point of charge submitted by the plaintiff was: “ If when the defendant delivered the second mortgage to the plaintiff on or about June 28, 1898, the property was subject to a lien of mechanic’s claim, the plaintiff was not obliged to accept the mortgage and had a right to return it and was entitled to payment of cash for the amount which the mortgage represented.” This was affirmed. There was beyond much doubt a lien upon the property at the date named. The court below submitted the question, whether or not the lien as filed covered the particular property upon which the second mortgage was jnade. This was going quite as far, in view of the proofs, as the defendant could have expected.

The third assignment is to the refusal of the court below to affirm the sixth point submitted by the defendant, “ that the property on which the mortgage in question was secured, having sold for fifty dollars at sheriff’s sale, in February, 1899, on foreclosure proceedings brought on the first mortgage, this price is the best evidence of the market value of the property and of the value of the second mortgage thereon.” The allegations of the statement of claim were not as clear as they might have been in view of the case developed by the evidence for the plaintiff. It sets forth the written contract; performance by the plaintiff and the failure of the defendant to make payment of the second mortgage. It would better have alleged in form the failure to make tender of a proper mortgage', and have omitted the allegation of the value of the mortgage. The statement of claim, however, adds that there “ is justly due from the defendant to the plaintiff the sum of five hundred dollars,” etc. Upon this allegation, we think the verdict can be sustained. The liability shown was for $500 (the balance of the contract price), becoming due in cash because of failure by the defendant to deliver a mortgage pursuant to his contract. See Singerly v. Armstrong, 5 W. N. C. 189.

The fourth assignment is to the refusal of the court below to direct a verdict for the defendant. Without entering upon a further discussion, we are of opinion that there were sufficient contradictions of material matters of fact to require the submission of the case to the jury.

The judgment is affirmed.