Chase v. Provident Life & Trust Co.
| Decision Date | 12 October 1903 |
| Docket Number | 291 |
| Citation | 56 A. 231,207 Pa. 24 |
| Parties | Chase, Appellant, v. Provident Life and Trust Company |
| Court | Pennsylvania Supreme Court |
Argued January 20, 1903
Appeal, No. 291, Jan. T., 1902, by plaintiff, from order of C.P. No. 4, Phila. Co., June T., 1902, No. 2948, discharging rule for judgment for want of a sufficient affidavit of defense in case of Charles A. Chase v. Provident Life and Trust Company. Affirmed.
Rule for judgment for want of a sufficient affidavit of defense.
The averments of the statement of claim and the affidavit of defense are set forth in the opinion of the Supreme Court.
The court discharged the rule.
Error assigned was the order of the court.
V Gilpin Robinson, with him Ernest L. Tustin, for appellant. -- The insufficiency of the affidavit of defense is apparent when tested by the principles laid down in the following authorities: Odd Fellows' Bank v. Miller, 179 Pa. 412; Erie City v. Butler, 120 Pa. 374; Moore v. Phillips, 154 Pa. 204; Ogden v. Beatty, 137 Pa. 197; Bank v. Stadelman, 153 Pa. 634; Kaufman v. Cooper Iron Mining Co., 105 Pa. 537; Noble v Kreuzkamp, 111 Pa. 68; Sanders v. Sharp, 153 Pa. 555; Githers v. Clarke, 158 Pa. 616; Harrisburg v. Baptist, 156 Pa. 526; Pittsburg v. MacConnell, 130 Pa. 463.
If the holder of collateral security through his negligence permit it to became worthless, he makes the loss his own: Hanna v. Holton, 78 Pa. 334; Beale v. Bank, 5 Watts, 529; McQueen's App., 104 Pa. 595.
John G. Johnson, with him James Wilson Bayard, for appellee. -- In doubtful cases, and especially in those requiring broad inquiry into facts, where the court refuses judgment, the matter in controversy should go to the jury, as the proper tribunal to decide the cause under proper instructions from the court: Griffith v. Sitgreaves, 81 * Pa. 378; Radcliffe v. Herbst, 135 Pa. 568; AEtna Ins. Co. v. Confer, 158 Pa. 598; Security Savings & Loan Association v. Anderson, 172 Pa. 305; Ensign et al. v. Kindred, 163 Pa. 638; Kidder Elevator Interlock Company v. Muckle, 198 Pa. 388; Isaacs v. Mutual Reserve Fund Life Assn., 189 Pa. 610; Holland v. Sunbury Iron Works, 9 Pa. Superior Ct. 261; Arnold v. Stoner, 18 Pa.Super. 537.
An affidavit of defense is sufficient which denies explicitly any allegation of the statement, the proof of which is essential to plaintiff's recovery, or which sets up any fact which is a complete bar to such recovery: Philadelphia Brick Company v. Johnson Co., 162 Pa. 199; Murphy v. Taylor, 173 Pa. 317; Davis v. Koenig, 165 Pa. 347; Landis v. Western Pennsylvania Railroad Company, 133 Pa. 579; Twitchell v. McMurtrie, 77 Pa. 383; Hutton v. McLaughlin, 1 Pa. Superior Ct. 642; Wilde v. Morrell, 198 Pa. 411; Kaufman v. Cooper Iron Mining Co., 105 Pa. 537.
Before MITCHELL, DEAN, BROWN, MESTREZAT and POTTER, JJ.
From plaintiff's statement and papers filed and not disputed, we gather the averments of the following facts:
Ernest Burleigh, in July, 1901, being about to commence the erection of a number of houses at Fifty-sixth and Market streets in Philadelphia made a proposition to Charles A. Chase, this plaintiff, to sell and assign to him twenty-two bonds secured by mortgage upon the land and the buildings to be erected thereon at Fifty-sixth and Market streets, the bonds aggregating in amount on their face $57,000, the said Chase to pay him therefor $37,500 in cash, and in addition convey to him, Burleigh, certain other real estate owned by Chase in Philadelphia at a valuation of $19,500. Chase accepted the proposition upon the condition that the Land Title and Trust Company of Philadelphia should issue its certificate insuring the title to the land at Fifty-sixth and Market streets, also the completion of the buildings within a fixed period free from mechanics' liens; and further, insuring that Chase should be able to realize the $37,500 on the land and property mortgaged; that David E. Dallam, Esq., counsel for Chase, then applied for him to the Provident Life and Trust Company, this defendant, for a loan of $37,500 to be secured on the property by the twenty-two bonds and mortgages; that the company approved the application and agreed to make the loan and specified to the Land Title and Trust Company the conditions upon which it had agreed to make it. Plaintiff after the agreement of the Provident Company to make the loan of $37,500 cash, delivered his deed to the Land Title Company, for the use of Burleigh of the $19,500, Philadelphia property. The conditions upon which the Provident agreed to make the loan, were, that the holder of the title was to execute directly to the Provident Company, twenty bonds and mortgages in the sum of $2,500 each at six per cent payable in three years, and two other bonds and mortgages for $3,500 payable at same date at same rate of interest; the mortgages to be upon the properties shown by an appended blue print; each of said bonds and mortgages to be accompanied by a separate title policy executed directly to the Provident Trust Company; that in addition to the title policies, a further policy should be issued insuring the completion of the buildings within six months; that fire insurance for the benefit of the Provident Company should be kept up. Then follows this stipulation, that the Provident Company on receipt of executed bonds and warrants, the settlement certificate of the Land Title Company, and order signed by Burleigh requesting that $37,500 should be handed over by the Provident Company to the Land Title Company for settlement, then, on performance of these conditions, that sum would be paid to the Land Title Company for settlement. Six separate communications passed from the Provident Company to the Land Title Company, the lending company in these communications insisting on changes in from and substance of the instruments framed to secure the loan, finally on August 1, 1901, mortgages for $57,000 were executed ready for delivery directly to the Provident Trust Company as required by it and the money was paid over to the Land Title Company. Then on March 26, 1902, Chase, this plaintiff, with whom the negotiation had been first opened by Burleigh for the loan, and who had opened communication with the Provident Trust Company to get the larger part of the money, entered into an agreement in writing with the Provident Trust Company, in which is stated as a preliminary, that whereas the Provident Trust Company has already advanced to Burleigh $37,500 on the bonds and mortgages, and whereas, it is the intention that Chase shall advance to Burleigh the remainder of the sum secured by said mortgages, therefore, it was agreed that Chase should have an interest in the mortgages to the extent of the moneys which he shall have advanced, second and subordinate to the rights of the Provident Company; that when the latter had been paid the $37,500 with interest and charges, or further, upon payment to said company by Chase of the $37,500 the company would assign to him or his nominees all the bonds and mortgages. It will be noticed this last agreement was made on March 26, 1902; afterwards, on April 9 following, the Land Title Company paid to and the Provident Trust Company received back the $37,500, and the lender, the Provident Trust Company, released the Title Company from all its obligations as insurers of the title and the completion of the buildings.
On these averments of facts Chase, the plaintiff, brought suit against the Provident Trust Company for the $19,500 excess the excess over and above the $37,500 included in the bonds which the mortgages were given to secure. He alleges a loss to this extent, and averred that the Provident Company by releasing the Title Company has violated its agreement with him of March 26, 1902,...
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