Cavanaugh v. Buehler

• Decision Date: 21 May 1888
• Docket Number: 155
• Citation: 14 A. 391,120 Pa. 441
• Parties: ELLEN CAVANAUGH v. G. W. BUEHLER, ET AL
• Court: Pennsylvania Supreme Court

14 A. 391

120 Pa. 441

ELLEN CAVANAUGH v. G. W. BUEHLER, ET AL

No. 155

Supreme Court of Pennsylvania

May 21, 1888

Argued April 23, 1888

ERROR TO THE COURT OF COMMON PLEAS OF ERIE COUNTY.

No. 155 January Term 1887, Sup. Ct.; court below, No. 200 May Term 1880, C.P.

On April 16, 1880, a summons in covenant was issued in a suit by G. W. Buehler and Thomas H. Robinson against Ellen Cavanaugh executrix of Thomas Cavanaugh, deceased, to recover a balance of purchase money claimed to be due upon a contract for the sale of real estate. On July 10th the defendant pleaded covenants performed absque hoc. On March 31, 1884, a special plea of former trial, verdict and judgment in same cause of action, was filed by leave of court.

At the trial on January 12, 1886, it was made to appear:

On January 10, 1867, G. W. Buehler and Thomas H. Robinson through N.W. Russell, their attorney in fact, sold by articles of agreement to Thomas Cavanaugh, lot No. 2657 in the city of Erie, for $1,250, payable in instalments; and, on March 5, 1867, they sold to said Cavanaugh the east half of lot No. 2660, adjoining the foregoing, for $750, payable also in instalments. These sales were effected through Hayes & Kepler, then in business as real estate agents in Erie.

Hayes & Kepler were the agents of Thomas Cavanaugh, also, in the sale of the same lots to several purchasers, Hageny, Sullivans, and Nunn, upon articles of agreement providing for annual payments, and from time to time they received and receipted for payments made on these sales. This suit was brought to recover a balance due on the contract of January 10, 1867.

On April 16, 1880, the same day the present suit was begun, an action of covenant was also instituted by the same plaintiffs against the same defendant, at No. 199 May Term 1880, to recover a balance of purchase money claimed upon the contract of March 5, 1867. In that action a verdict was rendered on March 4, 1882, in favor of the defendant, and judgment entered thereon.

The plaintiffs (in the present case) proved the contract of January 10, 1867, with certain payments credited thereon, and showing the balance claimed, rested. The defendant then produced and offered in evidence a deed from the plaintiffs to Thomas Cavanaugh dated December 27, 1874, and recorded January 26, 1880. Plaintiffs objecting to the admission of this deed on the ground that no delivery was proven, the court held that possession was prima facie evidence of delivery, and the deed was admitted. The defendant then rested.

In rebuttal, the plaintiffs introduced testimony tending to show that at the time of its date the deed had been executed and acknowledged by the grantors and left with Hayes & Kepler to be delivered on payment of the balance of purchase money, and that when they became insolvent and made an assignment in October, 1876, the deed with other papers had passed into the hands of Mr. Gunnison, then the plaintiff's attorney, who notified Mrs. Cavanaugh, the defendant, of the balance claimed to be due on the contract; that defendant called on Mr. Gunnison, and receiving the deed to look at it, kept it and carried it away without his consent.

The defendant, in sur-rebuttal, called a witness, S. P. Dempsey, a son by a former husband, who testified that during the holidays of 1874-5, he came into the house of Thomas Cavanaugh, with whom he resided, and found Mr. Hayes, of Hayes & Kepler, there in conversation with Mr. Cavanaugh; that the latter asked for the deed and witness went with his mother to a drawer where it was kept, obtained it, and Mr. Cavanaugh gave it to Mr. Hayes to be put on record; that witness had previously read the deed and knew it was the deed in controversy, stating also how he fixed the date of the occurrence; that Mr. Cavanaugh, then under disability, died of a cancer in April 1875. The defendant, with other offers to prove that the purchase money had been paid in full and the deed delivered thereafter, then proved by Patrick Hageny that he made his last payment upon the purchase of one of the lots from Mr. Cavanaugh to Hayes & Kepler by a check from C. S. Marks, treasurer of a building association, drawn to the order of Thomas Cavanaugh for $333.25 and that he then received his deed from Mr. Cavanaugh. This witness was followed by John Biggers, a foreman in sewer-construction for Mr. Cavanaugh, who testified that on January 2, 1875, he was up at the sewer and Mr. Cavanaugh came up, it was about his last time out: that he went with Mr. Cavanaugh, and they got some city warrants and took them to Hayes & Kepler, and that Mr. Hayes took the warrants and gave to Mr. Cavanaugh the check in their stead; that Mr. Cavanaugh said to Mr. Hayes, "Does this finish paying on the Russell lot?" and Mr. Hayes said, "Yes, it does." Mrs. Cavanaugh, the defendant, testified that after the receipt of a postal card from Mr. Gunnison on November 9, 1879, she called upon him, claimed that the deed had been delivered and had been put into the hands of Mr. Hayes to be recorded, and finding it in the possession of Mr. Gunnison, she obtained it and kept it against his protest, as her own. The defendant then offered in evidence the record in No. 199 May Term 1880, the declaration, pleadings, evidence, charge to the jury, and the points and answers, -- all the record, "for the purpose of showing that this case was substantially tried upon the former trial." The offer was objected to as incompetent; when the objection was sustained and the offer refused.

The plaintiffs replied to the foregoing, inter alia, by the testimony of Mr. W. P. Hayes, of the firm of Hayes & Kepler, who denied that he had received said deed from Mr. Cavanaugh to be put on record, as testified by Mr. Dempsey, or that he had said to Mr. Cavanaugh, as testified by John Biggers, that the purchase money upon the article was paid in full; the witness admitted that the accounts of Hayes & Kepler showed a balance due Mr. Cavanaugh of $497.76, without including the $333.25 paid by Hageny. The plaintiffs also read the deposition of S. P. Kepler, of Hayes and Kepler, who testified to the effect that Hayes & Kepler sold lots for Cavanaugh and Hageny and received portions of the purchase money, which was credited on the books of the firm to Cavanaugh, and that Cavanaugh instructed them that the money received from the sales of his property should be held for him and should not be paid on the plaintiff's articles as he intended to pay the latter himself when due, and he wanted the money collected for him for his own use.

The court, GALBRAITH, P.J., charged the jury and answered the points presented as follows:

The plaintiffs in this case claim that there is a balance due them from the estate of Thomas Cavanaugh of $836.39 on an article of agreement made between the plaintiffs and Thomas Cavanaugh in his lifetime, on the 10th January, 1867, for the sale of a part of a lot in the city of Erie, the terms being $100 cash in hand, and the remainder, $1,141, in payments running until January 10, 1875, eight annual payments.

Cavanaugh died in April, 1875, and this suit is against Mrs. Ellen Cavanaugh, his executrix.

N. W. Russell was the duly constituted agent or attorney of the plaintiffs, who reside in a distant part of the state. Mr. Russell, with the assent of his principals, made Hayes & Kepler, real estate agents and dealers at that time in Erie, agents under him. Cavanaugh also made Hayes & Kepler his agents to re-sell the property purchased from the plaintiffs for him, and it appears that they did so sell to several purchasers. It is from this double agency, probably, that the complication in this case, whatever there is, has arisen.

It is alleged on the part of the defendant, Mrs. Cavanaugh, that the entire amount due on this contract in suit has been paid, by its having been received by Hayes & Kepler, as agents of the plaintiffs, and the evidence shows that they have in their hands a balance of $497.76, and have had since September 6, 1878, standing to the credit of Thomas Cavanaugh on their books, they in the meantime having become insolvent.

It is claimed by the defendant that Hayes & Kepler received this money as agents for the plaintiffs, and that the deed was made, and delivered in compliance with the terms of the article in suit, but that afterwards it got into the possession of Hayes & Kepler in a manner that you have heard from the evidence on part of the defendant, of Mr. Dempsey, and Mr. Russell, by whom it was delivered to Mr. Gunnison, from whom the defendant admits she took it without Mr. Gunnison's consent.

There is no allegation on part of the defendant that the deed thus obtained would place any right, in law or equity, in her. There couldn't be any such allegation, because from the statements here made, and not denied, this obtaining of this deed could not by any possible construction be held to be a delivery at that time. She took it without the consent of Mr. Gunnison. That is conceded, and so far as that transaction was concerned it would vest no right whatever. It depends on what right had been acquired before that by the alleged former delivery. They claim that this deed had been formerly in the possession of Cavanaugh, and had afterwards got into the possession of the attorney of the plaintiffs here, and that, therefore, Mrs. Cavanaugh obtained only what she had a right to get; that is the allegation of the defendant.

The case turns mostly on the claim that the purchase money had been paid, and the deed delivered at a previous time, and that in taking it from Gunnison Mrs. Cavanaugh was taking only what was hers on account of the former delivery.

The question is, then, was this purchase money paid? It comes down to that. Of course the possession of...