268 Pa. 85 | Pa. | 1920
Opinion by
In 1905, defendant, with L. S. Walter and W. 11. Faust, of Mt. Carmel, Pennsylvania, formed a syndicate for the purchase and sale of real estate in Brooklyn, New York. Walter and Faust, claiming defendant received commissions to a large amount which he failed to divide with them, brought suit against him in the State of New York to recover their proportionate share of the profits realized from the business. Subsequently negotiations for the settlement of the claim were begun and, according to testimony on behalf of plaintiffs, the parties finally agreed that Walter and Faust should discontinue the proceedings and defendant would pay certain notes, including one for $4,000, which is the basis of this proceeding, also certain indebtedness of the Kriner Realty Company in which plaintiffs were interested, amounting in all to $39,000, in one of three ways: by placing a mortgage on land of the company located in Brooklyn, New York, or by sale Of the property at a price satisfactory to all parties; or by the purchase of the property himself, the proceeds in any case to be applied to the payment of notes and other indebtedness of the company. It was also agreed that defendant should pay plaintiffs’ attorney’s fees incurred in the New York proceedings. The question of giving a general release was discussed and the conclusion reached that Walter and Faust, for a stated consideration of $2,750, should execute a release to plaintiffs, $1,000 of the amount to be paid to the attorneys and a check drawn by defendant for the balance of $1,750, which latter was subsequently destroyed. Defendant, failing in his efforts to raise money by mortgage, in February, 1911, requested further time to make sale of the property. In April, 1912, he reported having sold the land. This deal, however, was not consummated and as nothing further was done by him toward carrying out his agreement, the present action was instituted on one of the notes he had engaged to pay by the terms of the agreement. An affi
The appendix covers nearly one thousand pages and there are eighty-five assignments of error. Many of these are not in proper form, others relate to minor questions not pressed at the argument. The actual merits of the appeal may be disposed of by passing upon comparatively few questions raised under defendant’s motion for judgment non obstante veredicto.
With respect to the contention that the trial judge should have directed a verdict for defendant, but little need be said. The facts recited above were sufficient, if believed by the jury-^and they evidently were convincing — to justify a verdict for plaintiffs, who were entitled to every inference which might reasonably have been drawn from the testimony adduced. The case was submitted in a charge fairly presenting the contentions of the respective parties, leaving to the jury to say whether the agreement set up by plaintiffs was, in fact, made.
Appellant contends the action was barred by the statute of limitations. This action was commenced June 30,1916, and is founded on a note dated December 21,1909, payable sixty days after date. Plaintiffs’ right to recover on the obligation is based on the agreement above recited made January 15,1910, pursuant to which defendant agreed to raise funds, either by mortgaging or disposing of property belonging to the Kriner Realty Company. No time was fixed in the agreement within which the money was required to be obtained; there is, however, evidence that, on February 21, 1911, defendant admitted his unsuccessful efforts to dispose of the property, at the same time stating he believed a sale to
It is also argued that no contractual relation existed between plaintiffs in the present action and defendant, as plaintiffs were not parties to the notes or to the agreement made by defendant to pay the notes, together with the indebtedness of the Kriner Realty Company. The consideration for defendant’s promise, however, was the release of plaintiffs’ claim against him for commissions in the New York proceedings. His undertaking was an original one and the consideration received for the undertaking moved from plaintiffs and consisted of the retention of their funds already in his hands, and represented by the commissions alleged to be due plaintiffs in the New York proceedings. The agreement was not a mere promise to pay the debt of another, but the debt represented by the note was made defendant’s own, and for Ms promise he obtained full value. This brings the case within the language of this court in Sweeney v. Houston, 243 Pa. 542, where the exceptions to the rule that a person cannot sue on a contract to which he is not
Neither is the agreement within the statute of frauds inasmuch as defendant, by virtue of the transaction, made the debt his own; hence the case was not one of a mere promise to pay the debt of another. The withdrawal of the New York suit was the consideration inducing defendant to promise to pay the notes in question, accordingly plaintiffs acquired an interest in the matter which furnished a foundation for his promise: Smith v. Exchange Bank, supra.
Defendant also relies on the effect of the release given him under date of February 19,1910, covering all claims and rights of action of every kind to that time, in consideration of the sum of $2,750, and argues that parol evidence, tending to show the consideration mentioned was not the true consideration, was inadmissible because it contradicted the writing. It appears that after the agreement for settlement of the New York proceedings was made in which defendant agreed to pay counsel fees of plaintiffs, as well as his own, a question arose as to the amount to be paid counsel, and defendant, desir
We deem unnecessary a discussion of the other questions raised in the numerous assignments of error and
The judgment is affirmed.