Schotte v. Meredith

192 Pa. 159 | Pa. | 1899

Opinion by

Mr. Justice McCollum,

This is an action of assumpsit on a contract between C. T. Schotte and F. G. Schotte by which the former, on February 23, Í88G, agreed, in consideration of $1.00 in hand paid and $2,000 payable at any time within ten years from April 1, 1886, with interest at six per cent, to convey to the latter, his heirs and assigns, on or before the last mentioned date, in fee simple and clear of all incumbrances, his undivided one-third interest in tbe farm commonly known as Humboldt farm, and in all the personal property then on said farm, including stock, grain, implements, etc. The contract contained, inter alia, a stipulation in the words following, to wit: “ The said F. G. Schotte agreeing to assume all debts due by said estate for which the said C. T. Schotte may be now liable.” The parties to the contract were sons and heirs of G. B. Schotte who died on March 26, 1884, seized of said farm, and intestate. F. G. Schotte, purchaser of the interest of C. T. Schotte in the real and personal property above mentioned, took possession of said farm and renewed the insurance upon the buildings and other property thereon in the name of G. A. and F. G. Schotte, loss if any, to be paid to F. G. Schotte.

F. G. Schotte died on April 25, 1886, and C. T. Schotte, on February 23, 1889, brought suit against the administrator of his estate for the money called for by the contract, which suit was dismissed on the ground that it was premature: Schotte v. Meredith, 138 Pa. 165. C. T. Schotte died on August 29,1893, and on April 15, 1896, his administrator instituted the present suit. On the trial of it the jury found for the defendant by direction of the court. It is stated in the appellant’s history of the case, and not denied by the appellee, that the ground of the direction to find for the defendant was that the vendor was bound by his contract to convey his interest clear of all incumbrances and that he had failed to do so.

The appellant contended and offered to prove on the trial that it was the understanding of the contracting parties that F. G. Schotte was to assume all debts of the estate of G. B. Schotte, deceased, for which the interest of C. T. Schotte therein was liable, including the Gilpin mortgage; that the stipulation to which we have already referred was intended by them to express that understanding and that its failure to do so was attributable to the mistake of the scrivener in not expressly stating therein that F. G. Schotte was to pay the Gilpin mortgage. The witness by whom the appellant proposed to prove that it was agreed by the parties that F. G. Schotte should assume and pay the Gilpin mortgage was the scrivener who wrote the contract between them, and by whom it was also proposed to prove that his omission to specifically mention in the stipulation the agreement respecting the payment of the mortgage was a mistake. That the witness was competent and disinterested was undisputed. The appellant also offered to prove declarations and admissions of F. G. Schotte clearly and positively corroborative of the agreement claimed by the appellant. The evidence offered was rejected by the court, and in the rejection of it we think there was error which calls for a reversal of the judgment.

The assignments of error are therefore sustained.

Judgment reversed and venire facias de novo awarded.