Baum v. Tomkin

• Decision Date: 09 November 1885
• Docket Number: 161
• Citation: Baum v. Tomkin, 110 Pa. 569, 1 A. 535 (Pa. 1885)
• Parties: Baum v. Tonkin
• Court: Pennsylvania Supreme Court

1 A. 535

110 Pa. 569

Baum v. Tonkin

No. 161

Supreme Court of Pennsylvania

November 9, 1885

Argued October 15, 1885

ERROR to the Court of Common Pleas of Cambria county: Of October and November Term 1885, No. 161.

This was, in the Court below, an action of debt by John B. Baum against Vincent Tonkin, to recover the balance of purchase-money of a tract of land in Cambria county.

On the trial, before JOHNSTON, P.J., the following facts appeared On May 24th, 1873, plaintiff agreed by articles of agreement to sell to defendant and R. C. McCurdy, who afterwards assigned his interest to Hipps & Lloyd, a tract of timber land situate in Susquehanna township, Cambria county. The consideration was five thousand dollars: two thousand to be paid on the 1st of July, 1873; one thousand on the first of June, 1874, and the balance, two thousand, on the 1st of June, 1875, with a limitation as to the quantity of timber to be cut each year until the land was paid for in full, unless security for the payments was given. The deed to be made at the last payment, with the same covenants for title which the plaintiff had received from the former owner.

Tonkin being anxious to cut timber in larger quantities, Baum on January 13th, 1875, before all the payments were made executed the deed for this property; no purchase money was paid at this time, but the previous payments and one payment made afterwards were receipted on the articles.

Subsequently on August 19th, 1876, Baum met Tonkin and Lloyd, of the firm of Hipps & Lloyd, for the purpose of arranging a settlement of the balance of the purchase-money, when it was found that there was a balance of $2,375 due Baum. Of this sum Hipps & Lloyd agreed to pay, and did pay $1,075, and, as was alleged, Tonkin agreed to pay the balance, $1,300, and as security for the same executed to Baum a writing in the nature of a mortgage whereby he conveyed to Baum his undivided half in the said tract in consideration of $1,300.

This agreement contained the following stipulation: "This grant is intended as a security for the payment of one thousand three hundred dollars on the fifteenth day of July, one thousand eight hundred and seventy-seven, with interest thereon at the rate of six per cent. per annum, which if duly made will render this conveyance void, and if default shall be made in the payment of the principal or interest above mentioned, then the said party of the second part, his heirs or assigns are hereby authorized to sell the premises above granted, or so much thereof as will be necessary to satisfy the amount then due with the costs and expenses allowed by law." No bond or other instrument in writing accompanied this indenture.

Baum testified in clear and positive terms, that at the time the deed was delivered, Tonkin agreed to pay him the balance of the purchase money (one thousand three hundred dollars in one year, and which was Tonkin's share), and that afterwards Tonkin renewed this agreement in 1877, 1878, 1879 and in 1880, but none of these promises were in writing.

Baum subsequently issued a scire facias on this mortgage and obtained a judgment upon which Tonkin's interest in this land was levied upon and sold to Baum for a nominal consideration. It appeared that at this time Tonkin had removed most of the lumber from the land and that it was of little value.

On the trial plaintiff offered in evidence the above mentioned mortgage of August 19th, 1876, for the purpose of showing that on that day Tonkin admitted an indebtedness of $1,300, and a contract between the parties.

Objected to that the paper presented is in fact a mortgage, that it was so treated by the plaintiff in this case who entered the same of record as a mortgage on the 4th of March, 1881, that upon this mortgage judgment has already been obtained, and that it imposes no personal liability upon the defendant in this case and cannot be proceeded upon in an action of debt. Objection sustained. Exception. (Assignment of error.)

Plaintiff also offered the original articles for the sale of the land, dated May 24th, 1873, between J. B. Baum, Vincent Tonkin and R. C. McCurdy, to be followed by evidence that R. C. McCurdy authorized the deed set forth in this agreement to be made to Hipps & Lloyd instead of to himself; this to be followed by evidence that when the deed was signed and acknowledged no money was paid, that on the day it was delivered Tonkin agreed to pay the balance due from him, $1,300, and that he has since, on several occasions renewed that promise and agreed to pay the sum of $1,300, the balance of the purchase money.

Objected to, because it is between parties other than the parties to this record; and because, even according to the testimony of the plaintiff, the agreement is merged in the deed which was made and delivered. Objection sustained. Exception. (Assignment of error.)

The court upon motion entered judgment of compulsory nonsuit, and subsequently refused to take off the same, filing the following opinion: "As to the facts we can find no authority for a recovery in a case like the present. The receipt on the deed is of no moment between strangers, and at most prima facie between the parties.

"Neither would the plea of the statute of limitations avail the defendant. McClurg v. Fryer, 3 Harris, 293, and other cases dispose of that question. But for the reasons we have endeavored to adduce, the rule to take off the nonsuit is refused."

Plaintiff then took this writ of error assigning for error the exclusion of the evidence as above, the entry of nonsuit and the refusal to take off the same.

The judgment is reversed and a venire facias de novo awarded.

George M. Reade, for plaintiff in error. -- The case should have been submitted to the jury. Baum testified that at the time the deed was delivered, Tonkin agreed to pay the balance of the purchase money in one year. The Statute of Frauds does not require such an agreement to be in writing: Tripp v. Bishop, 6 P.F.S. 424; Lowry v. Mehaffy, 10 Watts 387; McAboy v. Johns, 20 P.F.S. 9; Miller v. Fichthorn, 7 Casey 253. The original agreement was evidence for the purpose for which it was offered: Batdorf v. Albert, 9 P.F.S. 59.

It is admitted that no implied promise arises upon which a mortgagor can be made personally responsible without express agreement to pay. But the paper bearing date August 19th, 1876, was not offered as the cause of action, nor as an obligation upon which the suit could be maintained, but merely to corroborate the evidence of the parol contract accompanying it. For this purpose it ought to have been admitted in evidence: Brown v. Dewey, 1 Sand. Ch. 73; Barton v. May, 3 Id., 454; Burke v. Cruger, 58 Am. Dec. 102; Hersey v. Turbett, 3 Casey, 424; Bl'd'g Assn. v. Neill, 12 Norris, 322.

A variance between the writ and declaration must be taken advantage of by plea in abatement, if at all, and not on a writ of error: Springer v. The Commonwealth, 3 Pen. & Watts, 28; Slocum v. Slocum, 8 Watts 367, 371.

John P. Linton (William H. Sechler, with him) for defendant in error. -- The nonsuit was ordered principally because, under the pleadings, the evidence was not sufficient to submit to the jury. The mortgage, offered in evidence, was insufficient to sustain the action: Fidelity Trust Co. v. Miller, 8 Nor., 26.

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