31 A.2d 898 | Pa. | 1943
Plaintiffs brought this action in assumpsit under Act of May 28, 1715, 1 Sm. L. 94, § 10 (
The plaintiffs, claiming to have paid the mortgage in full, had previously brought a bill in equity to compel satisfaction of the mortgage and the defendant answered, denying that the mortgage had been paid. This court affirmed the action of a court of common pleas holding that the mortgage had been paid:Werner v. Automobile Finance Co.,
It is provided by § 10 of the said Act of 1715 as follows: "If such mortgagee, by himself or his attorney, shall not, within three months after request and tender made for his reasonable charges, repair to the said office, and there make such acknowledgment as aforesaid, he, she or they, neglecting so to do, shall for every such offense forfeit and pay, unto the party or parties aggrieved, *219 any sum not exceeding the mortgage money, to be recovered in any court of record within this province, by bill, plaint or information."
We have many times said: "We will not reverse an order awarding a new trial unless a palpable abuse of discretion on the part of the trial judge is disclosed or unless an erroneous rule of law, which in the circumstances necessarily controls the outcome of the case, is certified by the trial judge as the sole reason for his action": Girard Trust Co., Tr., v. Geo. V.Cresson Co.,
In an early case (Henry v. Sims, 1 Wharton 187, 200) construing a similar act with relation to the satisfaction of judgments we in effect held that the trial court did have the right to review the evidence for the purpose of determining whether it supports the penalty assessed. Granting that there is a distinction between damages and penalties, that the former are awarded as compensation to the aggrieved party and the latter are imposed with the primary object of punishing the offender (Central R. R. Co. v. Green,
The broad limitation of this act, that the penalty shall not be more than the face of the mortgage, which may be large or small, implies that the amount assessed will be determined by a consideration of the circumstances. A further examination of the circumstances that may be considered by the jury supports our main conclusion. While it has been held that a plaintiff is not required to prove that he has suffered actual damages in order to make out a case (Crawford v. Simon, *220
There is nothing in the case to indicate any abuse, much less palpable abuse, of discretion on the part of the trial court. That court saw and heard the witnesses and is far better able to decide what weight shall be given to their testimony than an appellate court not so favored can possibly be. As this cause must be retried we follow the usual practice of not reviewing the pleadings and evidence, but an examination of the record satisfies us that there was no abuse of discretion. The testimony not only fails to show any such abuse but it is strongly confirmatory of the conclusion of the court below.
We agree with the court below that the Act of 1715 was not intended to apply to cases where a mortgagee has reasonable grounds for believing and does honestly believe that the mortgagor was not entitled to have the *221
mortgage satisfied and wishes to have the issue decided by a court. To hold otherwise would imperil the security of all mortgages. A mortgagee could not dispute claims as to the amount due and could only have access to the courts for the adjudication of such claims at the risk of losing the full amount of the mortgage if the appellants' theory were adopted. While the precise question does not seem to have been considered before by this court, our conclusion is in harmony with that of other states: Mathieu v. Boston,
The order of the court below granting a new trial is affirmed.