69 Pa. Super. 496 | Pa. Super. Ct. | 1918
Opinion by
John Zentmyer, the appellee, lived with his parents in Porter Township, Huntingdon County. From them he bought a valuable farm against which several judgments were entered. On June 1, 1899, the appellant, Porter Zentmyer, a brother, on John’s behalf liquidated these judgments and secured from John his note for $5,698.26,
It is the contention of the appellant that inasmuch as the purchaser named in the agreement was not a “bona fide purchaser” provided in the agreement, the subsequent agreements for a reduction of the amount due under the judgment were without consideration. We cannot agree with this position for the reason that Por
The auditor found from the evidence of three persons that when that agreement of April 3,1901, was executed the plaintiff desired to keep certain information from his wife and asked that the figures $5,500 be omitted from that agreement and $5,000 substituted. There was sufficient evidence to sustain this finding and it should not be disturbed: Smith v. Harvey, 4 Pa. Superior Ct. 377; McGary v. McDermott, 207 Pa. 620; Henry v. Zurflieh, 203 Pa. 440. We do not consider this question as being within the statute of frauds. The material part of the agreement was in writing and the supplemental agreement affected only the consideration. It was the subject of dispute as to the amount due, and as to that, the question of statute of frauds did not arise. But apart from this, this question was not raised in the court below and should not be considered here: Leh v. Dutt, 66 Pa. Superior Ct. 171.
We have examined with care the appellant’s exhibit No. 2, and we are at a loss to apply it in this case. As a matter of evidence the auditor and court below did consider it in the final adjudication. As we look over the exhibits that have been offered in evidence, we find a letter from Porter to John written in September, 1900, wherein he states the amount due as $5,628.31, and it also appears from exhibit No. 2 that at the same time John owed Porter $5,813.97. We mention this merely as a circumstance in the case. We find nothing to convict the court below of error in its determination of this question.
The explanation of counsel at the hearing before the auditor was sufficient to clear up any doubt that might have been created by reason of the amount fixed in the
The assignments of error are overruled and the decree of the court below is affirmed.