Commonwealth, to Use of Bentzel v. Julius

• Decision Date: 27 January 1896
• Docket Number: 14
• Citation: Commonwealth, to Use of Bentzel v. Julius, 34 A. 21, 173 Pa. 322 (Pa. 1896)
• Parties: Commonwealth of Pennsylvania in trust for the use of Sarah Jane Shaffer, now Sarah Jane Bentzel, v. George D. Julius and John P. Julius, Administrators d.b.n. of the Estate of George Julius, Deceased, Appellants
• Court: Pennsylvania Supreme Court

34 A. 21

173 Pa. 322

Commonwealth of Pennsylvania in trust for the use of Sarah Jane Shaffer, now Sarah Jane Bentzel, v. George D. Julius and John P. Julius, Administrators d.b.n. of the Estate of George Julius, Deceased, Appellants

No. 14

Supreme Court of Pennsylvania

January 27, 1896

Argued June 4, 1895

Appeal, No. 14, July T., 1895, by defendants, from judgment of C.P. York Co., April T., 1892, No. 66, on verdict for plaintiffs. Affirmed.

Assumpsit on the bond of a guardian.

At the trial it appeared that on November 6, 1874, David Spahr was appointed guardian of Sarah Jane Shaffer by the orphans' court of York county, and filed the bond whereon this action was brought in the sum of $4,000 with George Julius as surety.

On March 21, 1887, the court removed Spahr and appointed Jesse V. Giesey guardian in his stead. On March 25, 1887 Spahr's account as guardian was filed. Exceptions thereto were referred to Horace Keesey, Esq., as auditor, who reported August 6, 1888, a balance due from David Spahr to his ward of $3,142.77, and the report was finally confirmed.

The ward Sarah Jane Shaffer, then the wife of Gilbert Bentzel came of age March 28, 1888. On April 27, 1888, Mrs. Bentzel executed a power of attorney to Jesse V. Giesey, her former guardian, authorizing him to collect all moneys due and payable to her from her first guardian David Spahr.

After petition therefor filed January 14, 1889, the court ordered Spahr to pay to Giesey the balance found due by the auditor with interest, by January 23, 1889. This Spahr failed to do and was subsequently arrested on attachment and remained in custody until discharged under the insolvent laws, February 8, 1892. George Julius, the surety on David Spahr's guardian bond, died, and the letters of administration on his estate were issued on August 6, 1891, to the defendants George D. Julius and John P. Julius.

This action was brought March 25, 1892, to compel the payment by the estate of George Julius of the sum for which David Spahr was in default to his ward.

On May 25, 1894, Sarah Jane Bentzel, in consideration of $1,500, executed a release in full settlement of her claim against the defendants. This release was attacked at the trial on the ground that its execution was procured by fraud and undue influence.

Defendants offered as a part of their defense to prove that in 1875 David Spahr bought a farm, using his ward's money in the payment of the price; but taking the title in his own name; that on December 3, 1887, this farm was levied upon the execution of a judgment creditor of Spahr, advertised for sale June 4, 1887, and finally sold December 3, 1887, for $1,300 to John S. Trimmer, the plaintiff in the execution; that before this farm was so sold by the sheriff a notice was served on Jesse V. Giesey, then the guardian of Mrs. Bentzel, informing him fully of these facts, and requiring him to take such steps as might be necessary to secure the said farm or its proceeds for his ward by enforcing the resulting trust, and notifying him that if he failed so to do the estate of George Julius, the surety, would be discharged. The court under exception, rejected this evidence and sealed bills for defendants. [n1-n3]

When plaintiff was on the stand her counsel offered to prove by her testimony that on the 22d day of May, 1894, she was at home at the house of her husband, alone; that the defendants, George D. Julius and John P. Julius, together with the witness's uncle, J. S. Shaffer, came to the house, and endeavored to procure from her a settlement of her case against these defendants; that she refused at first to do anything, or to make any settlement, because of the absence of her husband, and because she wished to consult him and her counsel before taking any steps in the matter; that she was told by her uncle, who had before that time professed to be her friend, and to be acting in her behalf to procure her money, that she had better settle this claim for the sum of $1,500, or she would probably get nothing; that he had seen her lawyers twice, and they were agreed that she should settle with the defendants; that she objected to doing so, and proposed to come to York on the Saturday following with her husband, to see her counsel, and to meet the defendants there; and that it was urged upon her by one of the defendants, and by her uncle, Mr. Shaffer, that it must be done on that day, or not at all; that her lawyers were fooling her about, and one of them had said she would probably get little or nothing out of her case at any rate; that the plaintiff, believing that what her uncle, Mr. Shaffer, said was true, believing that he was acting in good faith for her, and that he had seen her counsel, and that they had agreed to and advised a settlement of this case by her, and being without any one present to advise her, and herself ignorant of business affairs, she consented under protest to sign the paper, and did so; that immediately after signing she told Mr. Shaffer that she did not think it was right; did not believe it would stand; that she ought to have seen her lawyers; that he replied to her that it made no difference at all about the lawyers; she could come to York and offer them a couple hundred dollars to settle, and if they did not take it they could do without, or words to that effect; -- for the purpose of showing that the plaintiff executed the release already offered in evidence under a mistake as to facts, under the influence of false respresentations which induced her to do so; and to show that fraud and misrepresentation were used by the defendants, and by J. S. Shaffer, in their presence, to procure the execution of the instrument, and to show that it was executed by her under a mistake of facts in regard to the supposed advice of her counsel to settle; to be followed by the evidence of her counsel that they had not agreed to or advised a settlement, or told J. S. Shaffer any such thing; to be followed also by evidence that, immediately on the return of her husband to the house on the afternoon of the execution of this paper, Mrs. Bentzel told him what she had done; -- showed him the check which had been given her; -- and that she sent it back to York by the hands of her husband early the next morning for redelivery to the defendants; that said check was taken on the morning of May the 26th by Gilbert Bentzel, Daniel Lau and N. M. Wanner, counsel for the plaintiff, to the business place of John P. Julius, on South George street, in the city of York, and there delivered to him; counsel for the plaintiff stating to him that Mrs. Bentzel declined to accept or to retain it in settlement of her case; that she had been imposed upon and misinformed in the procurement of the release, and that the case would be pushed for the entire amount; the check was offered to Mr. Julius, who declined to receive it, and that it was then laid down upon his counter in his presence, and the parties who brought it there left.

This for the purpose of impeaching the validity of the release offered in evidence; for the purpose of showing that it was procured by fraud and misrepresentation, and to show the return of the alleged consideration upon which it was executed.

Objected to (by defendants) as not evidence for the purposes offered, or any of them; as not proper legal evidence in rebuttal; as not being legal or competent evidence to set aside the release in evidence under seal; as not being so clear, precise and specific as to be competent, legal evidence to establish fraud, accident or mistake; and as being an effort to show in part not facts, but conclusions and mental processes of the witness; and as containing also an offer to prove matters subsequent to the release; and, taken as a whole, the offer is irrelevant and immaterial; and that what is proposed to be proven by the counsel is immaterial, irrelevant, and not proper legal evidence for any purpose.

The Court: I will admit the offer except the following words: "Immediately after signing she told Mr. Shaffer that she did not think it was right; did not believe it would stand; that she ought to have seen her lawyers; and that he replied to her that it made no difference at all about the lawyers; she could come to York and offer them a couple hundred dollars to settle, and if they didn't take it, they could do without, or words to that effect." It is not evidence for the purpose offered.

Exception to the defendants, and bill sealed by order of court. n[4]

Plaintiff's counsel offered to ask her when she was on the witness stand what induced her to sign the release; for the purpose of showing that the plaintiff signed the paper, because she believed the statement made by Shaffer that he had seen her lawyers, and they were satisfied that she should settle the case.

It was objected to that that is not proper legal evidence for the purpose of affecting this instrument; as not being offered to show that her purpose was disclosed to the defendants.

The Court: I will admit that offer, and seal a bill of exceptions for the defendants.

She answered: "Just because Shaffer said he was with the lawyers, and that they were satisfied; and then I thought, well, I will sign it, and he will do what is right."

Plaintiff's counsel proposed to ask the witness what she meant by "he." -- "He will do what is right." Defendants' counsel objected because it was cross-examination by plaintiff of her own witness.

The Court: I think you have a right to ask her to explain that.

A. "I mean Shaffer." n[5]

Verdict and judgment for plaintiff for $4,000. Defendants appealed.

Errors assigned, among others, were (1-5) rulings on evidence, quoting the bills of exceptions.

Judgment affirmed.

Henry C. Niles, W. F. Bay Stewart and George E....