Albert's Executors v. Ziegler's Executors

• Decision Date: 01 January 1857
• Citation: 29 Pa. 50
• Parties: Albert's Executors versus Ziegler's Executors.
• Court: Pennsylvania Supreme Court

Page 50

29 Pa. 50

Albert's Executors versus Ziegler's Executors.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Adams county.

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McConaughy and W. H. Miller, for the plaintiff in error.—The instrument sued on being under seal and remaining in the possession of the obligee, its legal effect must be sustained, because if even the intention was as is alleged by defendants, there was no consideration and no delivery to pass the title. In the cases cited by defendant's counsel there was a consideration, as in Oxley v. Biddle, 2 Dall. 171; Lyon v. Huntingdon Bank, 14 S. & R. 283. But those cases are unlike the present.

A legal liability by specialty cannot be converted into an advancement, as is distinctly ruled in Kreider v. Boyer, 10 Watts 54; Haverstock v. Sarbaugh, 1 W. & S. 390; Levering v. Ritten-house, 4 Wh. 137; Porter v. Allen, 3 Barr 390; and Yunt's Appeal, 1 Harris 575. The case of Wentz v. Dehaven, which militated against this view, has been overruled: Campbell's Appeal, 7 Barr 100. This view is sustained by the best text writers, as well as by the adjudicated cases in our own courts. "Delivery is essential both at law and equity, to the validity of a parol gift of a chattel or chose in action:" 2 Kent's Com. 439. This was recognised in the cases cited 10 Watts 54, and 7 Barr 100. If a case in point could be stronger, it is found in McGuire v. Adams, 8 Barr 286.

Such being the law, it was error for the court to admit evidence of the declarations of Jacob Albert, of his intentions in reference to this interest, and in not instructing the jury that such intentions were not to be regarded in making up their verdict.

There was also error in admitting the endorsement on the bond. It could not operate as a release. GIBSON, C. J., in Campbell's Appeal says: "Possibly the destruction of a security might be equivalent to a delivery of it; but no mere intent to destroy it would be so. Nothing discharges it while it remains in the creditor's possession and power:" Wentz v. Dehaven, 1 S. & R. 317; Whitehill v. Wilson, 3 P. R. 412; Rann v. Hughes, 7 T. R. 346; Kennedy's Executors v. Ware, 1 Barr 450; Lyon v. Maclay, 1 Watts 271; Fink v. Cox, 18 John. R. 145.

A parol discharge without consideration or delivery cannot be sustained, and is entirely inoperative. Therefore the admission of the endorsement was calculated to mislead the jury. And the instruction in answer to the 4th point, that the endorsement was some evidence of the contract contended for, was calculated to operate in the same way. There was no evidence that the stipulation that the interest was not to be demanded unless needed by the obligee, was omitted by mistake, it was the essential part of the contract: Kennedy v. Plank Road Company, 1 Casey 224.

Hepburn, for defendant in error.—It is admitted that an unexecuted design to give up a bond, or a parol agreement to do so without consideration, is unavailable as a defence to a suit upon the instrument. But where, as here, a part of the original agreement was that the payment of interest was not to be required unless needed by the obligee, and the contingency did not happen — no demand made, his determination written on the back of it, the delivery of it to his grandson with the positive directions to burn it, the fraudulent means by which those directions were evaded, and this suit now prosecuted for the benefit of the party who prevented its destruction, present a different case from the ones cited by the plaintiff in error. This case is taken out of the operation of those cases by the actual delivery of the bond to the grandson, for destruction in accordance with the original agreement of the parties. If the bond had been burned as the obligee directed, there would be nothing in existence to found this action upon. The fraudulent means by which it has been preserved cannot better the case. The case of Licey v. Licey, 7 Barr 251, settles the principle, if authority be needed for what is so eminently just and self-evident. "Cancellation of a bond, or delivery to the obligor with that intent, discharges the debt. Delivery of a bond to a stranger passes the right to the debt as a gift:" Ziegler v. Eckert, 6 Barr 13, Wentz v. Dehaven, 1 S. & R. 312, 17, is not overruled as is supposed in the argument. In Whitehill v. Wilson, 3 Penn. R. 415, GIBSON, C. J., says: "It is proper to repeat, however, that independent of aid borrowed from the writing, the judgment in Wentz v. Dehaven stands clear of doubt or difficulty." And in the case of Wentz v. Dehaven, 1 S. & R. 317, C. J. TILGHMAN says: "It is certain, indeed, that if the obligee declares by parol that he forgives the debt, and delivers the bond to the obligor, the debt is extinguished," &c. And there certainly can be no difference if delivered to a third person, with directions to destroy it.

The case of Astor v. Pye, referred to and cited 5 Vesey 350, in note, and in opinion of court, 354, was an action at law, on a note endorsed, "Henry Pye pays no interest, nor shall I even take the principal, unless greatly distressed." And this endorsement, though not a testamentary act, was held by the Common Pleas, to which the case had been sent by the master of the rolls for a trial at law, to be a discharge.

Eden v. Smyth, 5 Vesey 341, 350, settles the same principle.

In Campbell's Estate, 7 Barr 100, the principles for which we contend are admitted. If the bond or note was parted with by the obligee or payee, and placed beyond his control for the benefit of payor or obligor, that instrument cannot be...