Adams v. Kuehn

• Decision Date: 27 February 1888
• Docket Number: 228
• Parties: SAMUEL ADAMS v. DAVID KUEHN
• Court: Pennsylvania Supreme Court

13 A. 184

119 Pa. 76

SAMUEL ADAMS v. DAVID KUEHN

No. 228

Supreme Court of Pennsylvania

February 27, 1888

Argued January 31, 1888

ERROR TO THE COURT OF COMMON PLEAS OF LEHIGH COUNTY.

No. 228 January Term 1887, Sup. Ct.; court below, No. 40 January Term 1886, C.P.

On December 14, 1885, David Kuehn brought assumpsit against Samuel Adams, declaring in the amended narr. substantially that, Jacob and Milton Weaver, trading as Weaver Brothers tobacconists, being indebted to the plaintiff in two several notes, dated on June 28, 1884, each for $158.50, and payable at sixty and ninety days, respectively, on August 12, 1884, a discourse was had between Weaver Brothers and Samuel Adams the defendant, wherein it was agreed that in consideration of a judgment obligation for $25,500 confessed by Weaver Brothers to said Adams, the latter would pay and satisfy the debt due and to come due from Weaver Brothers to the plaintiff; nevertheless the defendant had not paid the said indebtedness, etc. The plea was non assumpsit.

At the trial on May 3, 1886, it was made to appear that on August 12, 1884, Weaver Brothers, then insolvent, executed to Samuel Adams, the defendant, a judgment note for $25,500, on which judgment was entered the next day, execution issued and the stock of Weaver Brothers sold at sheriff's sale to Adams. The plaintiff proved the indebtedness of Weaver Brothers to himself, and called Jacob and Milton Weaver, who testified to the effect that the judgment note was given at the office of Mr. Adams in the presence of Mr. F. M. Trexler, a member of the bar, and the firm book accounts transferred the same day that an assignment for the benefit of creditors was suggested, but Adams urged the firm to give him a judgment suggesting the sum of $37,000, upon which to sell their stock at sheriff's sale, when Mr. Trexler called his attention to the fact that he already held a judgment for $11,500 and he then said to make it $25,500; that the note for that amount was executed and delivered and the book accounts assigned upon the agreement of Adams that he would give the obligors $4,000 he had previously promised them, convey to them certain real estate and pay the claims of all their creditors so as to give them a "free name;" that the terms of Adams's contract were put in writing at his direction by Mr. Trexler, but that when Adams received the note he went away promising to sign the contract the next day, but did not sign it at all; that after the sheriff's sale the stock was put into the management of Mr. Trexler and certain claims against the firm were paid out of it. It was admitted that Mr. Adams was an indorser for the firm to a large amount.

To meet the plaintiff's case, both the defendant and Mr. Trexler testified in substance that the judgment obligation was given without any undertaking for the payment of Weaver Brothers' creditors; that no engagement thereto was put in writing or so directed; that the liabilities of the firm to the defendant not including those covered by the prior note or judgment for $11,500, were ascertained at $29,000, and a credit considered reducing the amount for which the note was given to the sum of $25,500, and that certain of the other creditors who were subsequently paid by the defendant were paid after the sheriff's sale in pursuance of a promise to Weaver Brothers made after the note was given, but not as legal obligations.

The court, ALBRIGHT, P.J. charged the jury and answered the defendant's points, inter alia, as follows:

The defendant Samuel Adams, is not a party to the promissory notes for which the plaintiff seeks to recover. He did not sign them as maker, nor as indorser, and before the plaintiff can recover against Samuel Adams, he must prove a liability in law on Samuel Adams's part to pay. The allegation is that Samuel Adams became liable to pay the claim of the plaintiff by reason of the promise, which it is alleged he made to the Weaver Brothers at the time they confessed a judgment to him, and that the promise was the inducing cause of giving the judgment. . .

Assuming that Adams was a creditor of the Weaver Brothers at the time, and that David Kuehn also was a creditor, the confession of the judgment due one day after date was an advantage to Samuel Adams. It enabled him at once, and without suit to obtain a judgment, which became a lien on the real estate of the Weaver Brothers, and it enabled him the day afterwards to issue execution and to seize all the goods and chattels, which they owned. It was an advantage which he obtained to the detriment of other creditors of the Weaver Brothers. If it is proved, gentlemen, that the promise to pay all the creditors, was the inducing cause of the confession of that judgment by the Weaver Brothers, and if Kuehn was at that time a creditor, he is entitled to recover. The promise bound Samuel Adams. It would not matter that the promise was not made directly to David Kuehn. If that promise was made, and he was a creditor, he could avail himself of that promise and enforce it by a suit; and if the promise set up by the plaintiff was not made, then the plaintiff cannot recover, no matter what the indebtedness of the Weaver Brothers to Adams may have been, whether it was the amount of the judgment, more or less. If that promise was made, and it was the consideration of confessing the judgment, then, as I said to you, Adams is bound by it, even although the judgment was given to him for no more than the Weaver Brothers owed him, and if he did not make the promise, David Kuehn cannot recover, although the judgment was for more than was owing. We cannot in this issue determine whether the judgment was for the amount Adams was liable for, and what the Weaver Brothers owed him, or for more or less. That cannot affect this issue. The main question in the case is whether the promise set up by the plaintiff was made or not.

[Upon this question of the indebtedness of the Weavers to Adams considerable evidence has been introduced and has been commented upon extensively. On the part of Adams it was shown to rebut the idea that the promise was made and to show possibly the improbability of its being made, that the Weaver Brothers were indebted to him for the amount of this judgment and the amount of a judgment which had previously been given of $11,500, and much more; and on the part of the plaintiff, to meet that theory of the defendant, it has been attempted to be shown that the indebtedness to Adams was not that much, nothing like it. If that is true it helps you to determine as to whether this promise was made or not. You can use it as a circumstance for that purpose; excepting its bearing upon that question it has nothing to do with the case.]

The Weaver Brothers (Jacob Weaver and Milton Weaver) have testified in substance that the promise was made. Jacob Weaver said that when they met at the office a judgment was spoken of; that it was said in substance that Adams wanted a judgment from them, and that there was some hesitancy on their part, or on the part of one of the brothers to confess the judgment. One of them spoke of an assignment for the benefit of creditors, and said he preferred that course, and Jacob says that he said under no consideration would they sign a judgment, because they did not owe him anything; that Mr. Trexler then said that the Weaver Brothers had a proposition to make, and that then he (Jacob) said "that all the creditors must be paid," and that it was then said by Mr. Adams that Mr. Trexler, who was sitting there and writing, should write it down, and I believe it was testified, and it is for you to remember what the testimony was, that Adams said "all right," and then it was said the Weaver Brothers, or one of them, said that four certain creditors of theirs should be paid first: Wertman, Stevens, Rebecca Weaver and certain money which one of the Weavers had in hand of certain minor children. Milton Weaver testifying, said that the judgment was spoken of, and that Mr. Adams wanted a judgment rather than an assignment for the benefit of creditors, and that his brother (meaning Jacob) then said that all the creditors must be paid; that Wertman, Stevens, Rebecca Weaver and the minor children's money should be paid first, but that all the creditors had to be paid before they confessed a judgment; that when the judgment had been written he (Milton) said to his brother Jacob: "Shall I sign this death warrant?" and that then it was said: "Yes, under those conditions you can sign," and he signed it.

This is denied by Mr. Adams totally. He says that there was no agreement to pay all the creditors; that that was not demanded by the Weaver Brothers: that nothing was said. Mr Trexler testified that nothing was said to that effect; that there was no understanding or promise to pay all the creditors, and that the Weaver Brothers did not ask it. Then it is alleged that you can find from the subsequent conduct of the parties interested, possibly from what they said, something which bears upon the question as to whether the promise was made or not. It is said that Mr. Adams's subsequent conduct showed that he recognized the existence of a promise such as the plaintiff sets up. On the part of the defendant it is insisted that you can find from the conduct and possibly the declarations of the Weaver Brothers afterwards made, that there was no such promise; that they knew there was none. If there is any conduct of either of the parties or a subsequent declaration, which tends to throw light upon the question as to whether the contract was made before the judgment was signed, you will receive it and give it its due weight. But in order to be binding, the promise to pay the other creditors must have been made at the time that...