Bierman v. Lebanon Valley College

• Decision Date: 21 April 1902
• Docket Number: 122-1901
• Citation: Bierman v. Lebanon Valley College, 20 Pa.Super. 133 (Pa. Super. Ct. 1902)
• Parties: Bierman v. Lebanon Valley College, Appellant
• Court: Pennsylvania Superior Court

20 Pa.Super. 133

Bierman v. Lebanon Valley College, Appellant

No. 122-1901

Superior Court of Pennsylvania

April 21, 1902

Argued November 1, 1901 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Lebanon Co.-1900, No. 269, on verdict for plaintiff in case of E. Benjamin Bierman v. Lebanon Valley College.

Assumpsit to recover a balance of salary. Before Ehrgood, P. J.

At the trial it appeared that plaintiff claimed to recover $ 1,380, balance of salary due to him as president of the Lebanon Valley College. The claim was not disputed, but the defendant asserted the right to set off against the claim the sum of $ 950 alleged to be due on the following subscription paper:

" Exhibit No. 1.

" June 18, 1891.

" We the undersigned do hereby for ourselves, our heirs, and executors or administrators and assigns and agree to pay to H. H. Kreider, within ninety days from this date, the amount set opposite our respective names, provided the full sum of $ 2,000 be secured:

" H. H. Ulrich, $ 150.

H. H. Kreider, $ 150, received $ 25.

L. L. Swartz, $ 100, paid.

A Friend, paid by D. Eberly, $ 50.

By C. L. Stearn, $ 100.

Isaac H. Albright, $ 25.00, paid $ 10.

A. P. Funkhouser, $ 15.00.

S. D. Faust, $ 25.00.

Isaacs B. Haak, $ 50.00, paid.

Chas. B. Retter, $ 25.00.

J. H. Von Neida, $ 50.00, paid.

E. Benj. Bierman, $ 50.00, paid.

Pennsylvania Conf. per I. H. Albright, $ 270.00.

E. Benj. Bierman, $ 975.00, paid on $ 25.

" (Indorsement in Bierman's handwriting): '$ 2,000 subscribed by various persons June 18, 1891.'"

Mr. Capp: We now offer in evidence Exhibit No. 1, the evidence now in the cause being sufficient under the rules of law to show that it was intended by the parties to be made payable to the order of H. H. Kreider, treasurer of Lebanon Valley College, and was made payable to H. H. Kreider individually by mistake; for the purpose of establishing one of the defendant's items of set-off in this case.

Gen. Gobin: We state our objection: First, because the evidence intended to be relied upon is not clear, precise and indubitable; it is the inference drawn by several gentlemen who have not seen or thought of the paper from the time of its execution until this time, and is contradicted by other gentlemen present, who testified that it was done presumably in the manner it was intended to be done by those who authorized its formation. It certainly is not such a recognition of a mistake as under the law a court would be justified in correcting upon the testimony adduced -- it is not clear, it is not precise, it is not certain and definite and therefore cannot be accepted as amended. We might put in our third objection --

The Court: As to the statute of limitations?

Gen. Gobin: Statute of limitations and that it contains confidential subscriptions which reduces the amount below the sum desired to be raised, which made the subscription effective, and which under the law cannot be competent, therefore it never was a valid subscription.

The Court: The condition was not performed?

Gen. Gobin: Not performed.

The Court: Objection sustained, offer overruled, defendant excepts, bill sealed.

Mr. Capp: The undisputed evidence in the case being that this instrument was executed by mistake, not conformable to the real intention of the parties and the evidence being sufficient to rectify the error in accordance with the intention of the parties, we now offer in evidence the subscription, which in addition to the subsequent declarations made by the plaintiff, his payments thereon and his subsequent promises to pay, are, if credited by the jury, sufficient to establish one of the defendant's items of set-off.

Gen. Gobin: We renew all the objections we have repeatedly made. This is the offer just in another form and based upon no additional testimony whatever, leaves it just as it was, no reference at all in the minutes except what we have already had, simply a reiteration.

The Court: Objection to the former offer is now made?

Gen. Gobin: Yes, sir, all renewed.

The Court: Offer is overruled, exception to the defendant.

H. H. Kreider, a witness called on behalf of the defendant, having been first duly affirmed.

Direct examination by Mr. Capp.

* * * *

" Q. Do you know whether this subscription list was gotten up for your benefit or for the benefit of the college, and do you further know whether Prof. Bierman knew what it was gotten up for?"

Mr. McCurdy: Same objection.

The Court: Objection sustained; offer overruled; exception to the defendant.

" Q. Do you know whether or not it was the intention of the parties to this subscription paper, as expressed at that meeting in the presence of the plaintiff to draw that paper as it now is, or is any material portion omitted therefrom, and, if so, what are the words?"

Gen. Gobin: Same objection.

The court charged as follows:

On the part of the defense it is admitted that $ 1,380 is due the plaintiff for salary and was due on July 31, 1897. [The set-off attempted to be introduced in this case we have ruled out for reasons that we are of opinion are fully warranted by the law. The alleged subscription, such that was attempted to be offered in evidence, on its face shows that there is not a valid subscription of $ 2,000. The subscription on its face shows that it is a subscription, or a promise to pay, to H. H. Kreider, without any purpose whatever stated in the heading of the subscription, what it is to be for.] [On the part of the defense it is attempted to show that this subscription is a subscription to Lebanon Valley College for the purpose of meeting an indebtedness that was due at the time when the alleged subscription was taken.

Under all the evidence in this case we are of the opinion that they cannot substitute a subscription to Lebanon Valley College for the purpose of paying an indebtedness in place of a subscription to Henry H. Kreider, or to H. H. Kreider, stating no purpose for which the subscription is taken.] [We also are not fully convinced from all the testimony that on the question of the bar of the statute of limitation the evidence reaches the order of evidence that ought to be introduced in order to tell the bar of the statute of limitation.] There were three or four witnesses called as to the removal of the bar of the statute of limitation. They have all differed in their testimony, and presumably all the conversations, or the conversation about the acknowledgment of the subscription and the alleged promise to pay, took place at the same time, and there is only one witness, and he testifies in the third person, as to a promise to pay.

Therefore, under all these circumstances, we have come to the conclusion that the alleged set-off cannot avail in this case. We have permitted the defendant to introduce all his testimony, or we have ruled upon their offers, made in different ways, and the case, so far as the defense is concerned, relative to the set-off, is so well on the record that if the court is wrong there will be no difficulty for the defendant to receive relief in a higher court, but [believing that the set-off attempted to be introduced in this case is not a valid set-off against this claim, we deem it our duty to say so to you and instruct you to find in favor of the plaintiff for $ 1,380, with interest from July 31, 1897.]

Verdict and judgment for plaintiff for $ 1,652.55. Defendant appealed.

Errors assigned, among others, were rulings on evidence, quoting the bill of exceptions. Above instructions, quoting them.

Affirmed.

Thomas H. Capp, with him S. P. Light, for appellant. -- The evidence was sufficient to reform the paper: Huss v. Morris, 63 Pa. 367; Schotte v. Meredith, 192 Pa. 159; American Harrow Co. v. Swoope, 16 Pa.Super. 452; Finney v. Cochran, 1 W. & S. 112; Graff v. Pittsburg, etc., R. R. Co., 31 Pa. 489; Miller v. Hanover Junction, etc., R. R. Co., 87 Pa. 95; Shellenberger v. Patterson, 168 Pa. 30; Perkiomen Brick Co. v. Dyer, 12 Montg. 74.

J. P.S. Gobin, of Gobin & McCurdy, with him George B. Woomer, for appellee. -- The evidence was insufficient to reform the paper: Boyertown Nat. Bank v. Hartman, 147 Pa. 562; Keller v. B. & O. R. R. Co., 10 Pa.Super. 240; Stine v. Sherk, 1 W. & S. 195; Spencer v. Colt, 89 Pa. 314; Rowand v. Finney, 96 Pa. 192; Stewart's App., 98 Pa. 377; Murry v. New York, etc., R. R. Co., 103 Pa. 37; Logue's App., 104 Pa. 136; Ott v. Oyer's Exr., 106 Pa. 17; Phillips v. Meily, 106 Pa. 536; Sylvius v. Rosek, 117 Pa. 67; Reno v. Moss, 120 Pa. 49, 67; Honesdale Glass Co. v. Storms, 125 Pa. 268; Boyertown Nat. Bank v. Hartman, 147 Pa. 558; Hoffman v. Bloomsburg, etc., R. R. Co., 157 Pa. 175.

Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.

OPINION

RICE, J.

In this action, brought to recover a sum admittedly due the plaintiff, the defendant pleaded set off, and on the trial offered in support of its claim the following subscription paper dated June 18, 1891: " We the undersigned do hereby for ourselves, our heirs, and executors or administrators and assigns promise and agree to pay to H. H. Kreider, within ninety days from this date the amount set opposite our respective names, provided the full sum of $ 2,000 be secured."

Subscriptions for divers sums, amounting in the aggregate to $ 705, preceded that of the plaintiff for $ 50.00, then followed a subscription by another party for $ 270, and then another subscription by the plaintiff for $ 975, thus making the sum of $ 2,000.

To meet the objection, apparent on the face of the paper that it does not in terms, nor by implication, import an obligation to pay the sums subscribed to the Lebanon Valley College, for its use, the defendant...