20 A.2d 81 | Pa. Super. Ct. | 1941
Argued April 25, 1941. Plaintiff in this action in assumpsit is the widow of Reinhard Volkwein, and defendant is his executor. Plaintiff sued defendant as executor to recover alleged loans to her deceased husband. Defendant filed an affidavit of defense and a counterclaim for the proceeds of an industrial insurance policy on the life of decedent, containing what is known as a "facility of payment" clause. Plaintiff replied, and at the trial the *268 issues were submitted to a jury. The jury found for plaintiff for a part of her claim for money loaned, and for defendant on his counterclaim. Plaintiff's motions for new trial and for judgment n.o.v. were refused, and judgment was entered in favor of defendant for the difference. Plaintiff has appealed.
Appellant's argument for a new trial is based upon the alleged error of the trial judge in refusing to permit appellant to testify generally as to her loans to decedent. At the trial appellant produced a witness who testified she was present when a loan was made by appellant to decedent. The jury apparently accepted this testimony, but refused to allow recovery beyond the definite amount to which this witness testified.
We are unable to find any merit in appellant's contention that her offered testimony as to the transactions between herself and her deceased husband was improperly excluded. Under the Act of May 23, 1887, P.L. 158, § 5, cl. (e), 28 P. S. § 322, appellant was not a competent witness in support of her claim as a creditor against her husband's estate. Sutherland v. Ross,
In Bowman's Estate, supra, the decedent's children testified to conversations with the stepmother who *270 claimed against the decedent's will. The stepmother thereby became competent to contradict such testimony, but not for other purposes.
Appellant was not competent generally to prove the alleged loans, but she was properly permitted to deny the statements attributed to her by the witness.
The remaining question relates to appellee's claim to the proceeds of the policy on the life of decedent paid by the insurance company to appellant who had possession of the premium book and the policy. The policy contained a "facility of payment" clause,1 and the voluntary payment to appellant, who was by the insurance company designated under the provisions of the policy as the person equitably entitled to receive the money, vested in her an absolute property in the proceeds without any liability to account for them to the decedent's executor. Althouse v. Roth,
Consideration is generally an essential element of an enforceable contract, and it remains firmly entrenched as one of the fundamental principles of the common law. Fried v. Fisher etal.,
The doctrine of promissory estoppel has been adopted in certain fields as a "substitute for consideration," or as "the equivalent of consideration" (Allegheny College v. National ChautauquaCounty Bank of Jamestown,
Finally, by his argument, appellee seeks to transform the actions of appellant into the creation of an express parol trust, citing Restatement of the Law, Trusts, § 28, and Gritz v. Gritzet al.,
The jury's verdict was for appellee for the proceeds of the insurance policy in the amount of $380.16, and for appellant in the amount of $212.50. Judgment was entered for appellee for the difference, or $167.66, with interest from March 7, 1940.
The second assignment of error is sustained.
Judgment is reversed, and is here entered for plaintiff in the amount of $212.50, with interest from March 7, 1940.