262 Pa. 159 | Pa. | 1918
Opinion by
The appellants were partners engaged in the business of stock brokers in the City of Philadelphia. On 29th March, 1915, they executed a mortgage subject to certain other mortgages on their place of business, to the Republic Trust Company, plaintiff herein, in trust to secure the payment of certificates they were to issue to the amount of $75,000. These certificates were issued to one Jacob Nolde in consideration of the latter transferring to the firm certain bonds of the market value of $41,500, the certificates to be held as collateral security for the return or payment of the bonds so advanced or loaned by Nolde. The mortgage stipulated that the mortgagors would
The next defense set up in the affidavit has respect to the breach alleged in the nonpayment of the interest on the certificates. The nonpayment is admitted, but certain agreements with Nolde and certain acknowledgments by him, in writing, copies of which accompany the affidavit of defense, are relied upon as showing that Nolde agreed with defendants as of the date of 27th November, 1915, the latest and last of the written agreements between the parties, as follows: “That all claims of the said Jacob Nolde on notes or agreements of any kind against the firm of Hughes & Dier, or against its stock exchange or board of trade seats, or against any member of said firm individually, are hereby cancelled and all parties released from further liability.” This condition, or consideration, whichever it may be called, follows in the next section of the agreement: “That the said Dier will within five years transfer or deliver to the said Jacob Nolde stock in one or more companies formed or promoted by Dier or his associates which shall in the opinion of the said Dier be of the value of not less than two hum dred and fifty thousand dollars. Any bonds or coupons now or hereafter held or acquired by the said Dier may from time to time be delivered in place of such stock at the option of said Dier, and after delivei’y of stock, bonds or coupons to the amount of two hundred and fifty thousand dollars, all securities or notes heretofore delivered to or held by Jacob Nolde shall be returned to Dier, no interest on any of said notes or securities to be demanded or paid prior to such return..... .All previous agreements between the parties hereto are hereby suspended and cancelled so far as inconsistent herewith.” We have examined with much care the earlier agreements and acknowledgments accompanying the affidavit of defense without finding anything that reflects any light upon the meaning and understanding of the parties beyond what is expressed in the agreement from which we have taken the
Passing Exhibits “D,” “E” and “F,” all of which concern entirely different transactions between the parties without any relation whatever to the certificates or bonds, we come to Exhibit “C,” on which defendants place their
We turn now to the contract of 27th November, 1915, to ascertain and determine, if we can, its true import and significance, more particularly to learn and determine whether the debt owed from Jacob Nolde for or on account of the loan of those certain bonds for the return of which they pledged to him as collateral mortgage certificates amounting in all to $75,000, face value, is included within the terms and operation of the contract. If it is, then unquestionably their liability therefor has been discharged and defendants are entitled to a return of the pledged certificates. It resolves itself into a question of intention of the parties. By the terms of the contract “all claims of the said Jacob Nolde on notes or agreements of any kind against the firm of Hughes & Dier ......or against any member of said firm individually, are hereby cancelled and all parties released from further liability.” Whatever ambiguity here arises is due to the fact that the parties in describing the subject of the agreement, or the objects upon which it was to operate, instead of specifying with distinctness and precision what these subjects or objects were, adopted language of widest meaning which literally might well be held to embrace many things evidently not intended. Especially is this true of the words, “agreements of any kind.” We see nothing in the case' that would have hindered or prevented the parties from particularizing the agreements from the binding obligations of which.the defend
Among the agreements referred to in the affidavit, as an examination will show, there is not a single one inter partes, that makes specific reference to the mortgage loan certificates; nor is there one signed by Jacob Nolde alone, nor by defendants alone, out of which would arise an implied contract with respect to that particular transaction. Therefore, the conclusion that that transaction was part of a subject-matter entering into the agreement of 27th November, 1915, is gratuitious, finding no support in the papers filed, and to which reference is made in support of the averments. We have no concern with the consideration mentioned in the agreement of 27th November, 1915, except as it helps us to understand the situation and circumstances surrounding the parties to it, and our only reference to it will be in that connection. The agreement on the part of Nolde was for the immediate cancellation by him of all claims on notes or agreements of any kind against the defendants, these amounting, as declared in the affidavit of defense, to not less than $250,-000, and the defendants being at that time, as averred in the affidavit, entirely unable to carry out the agreements made with Nolde, or to make any payments on account thereof. We find no distinct averment in the affidavit that the debt for which the mortgage certificates were given as collateral were included, in this aggregate. The affidavit avers that affiant (Dier), and Jacob Nolde, the same day went over the notes held by Nolde against the firm and that they amounted to $70,000, as per schedule
The judgment is affirmed.