Crawford v. Pyle

• Decision Date: 13 March 1899
• Docket Number: 161
• Citation: 190 Pa. 263,42 A. 687
• Parties: H. Mary Crawford v. Abner Pyle and Thomas B. Brown, trading as Pyle & Brown, Appellants
• Court: Pennsylvania Supreme Court

42 A. 687

190 Pa. 263

H. Mary Crawford v. Abner Pyle and Thomas B. Brown, trading as Pyle & Brown, Appellants

No. 161

Supreme Court of Pennsylvania

March 13, 1899

Argued February 6, 1899

Appeal, No. 161, Jan. T., 1898, by defendants, from judgment of C.P. Chester Co., Aug. T., 1896, No. 111, on verdict for plaintiff. Affirmed.

Assumpsit on a guaranty. Before BUTLER, J.

The facts appear by the opinion of the Supreme Court.

The court charged in part as follows:

The plaintiff brings this suit in an endeavor to recover from the defendants the sum of $1,600, with interest from May 1, 1889 alleging that that amount is due upon a security which she bought of the defendants in the fall of 1889, which, she alleges, they guaranteed, which she appears to have placed in their hands for collection in the fall of 1891, and on account of which, she tells you, she has never recovered anything.

The first question that you will be called upon to determine is did the defendants guarantee this loan? If they did not, that is the end of this case. If they did, then you will pass to the second question, has the plaintiff had satisfaction or discharge of her claim so as to relieve the defendants, if they did guarantee?

You will first take up the question, did the defendants guarantee this security. The burden is upon the plaintiff to satisfy you that they did. It is not for the defendants to show you that they did not guarantee. It is for the plaintiff to satisfy you that they did guarantee this loan. I need not say that an undertaking of this kind, a guaranty of a loan of this size is a serious and solemn contract and undertaking, that it is usually evidenced by a writing, and that where the effort is to prove that an oral contract of guaranty has been made, under such circumstances it ought not to be found unless the evidence fully and entirely satisfies you that such a contract was made.

Now, there was no such contract made; there was no guaranteeing of the loan, unless Sumner Whitson as agent for the defendants guaranteed it. [I do not understand the authority of Sumner Whitson to be questioned,] but did Sumner Whitson guarantee this loan? Did he pledge Pyle & Brown, the defendants, to a guarantee of this obligation?

[Now in our judgment the plaintiff has had no acquittance or discharge of her claim that would relieve the defendants if they guaranteed this loan, unless it appears that she authorized the land upon which the mortgage was a lien to be bought in under the foreclosure proceedings in her name for her claim. There cannot be any doubt, under all the evidence in this case, that in the fall of 1891 the bond and mortgage were placed in the hands of the defendants at their instance with a view to collecting the moneys due. We do not think, however, that this circumstance would interfere with the defendants' obligation of guaranty, or would authorize them, without more, to proceed to foreclose and buy in the land in the name of the plaintiff for her claim. If you find that the defendants guaranteed this loan, that at their instance it was put into their hands for collection, then, in the judgment of the court, it was their duty to collect the money due this plaintiff. If they could not collect it, it was their duty to pay the loan themselves, because they had guaranteed it. She had a right to look to them, and when she placed, at their instance, the security in their hands for collection, I repeat, in the judgment of the court, it was their duty to make and collect the money for her or pay her themselves. They had no right, without more appearing, to buy in the land and hand that over in discharge of their obligations. If it became necessary to buy the land to avoid a loss it was their business to buy it. She was under no obligations to do so. Therefore we say to you that if you find this guaranty was made, as alleged by the plaintiff, the defendants are liable, unless you are satisfied that the plaintiff authorized this land to be bought in for her and her claim to be bid upon it. The defendants say that she did authorize this, and they seek to establish the fact by producing the records of the foreclosure proceedings as they transpired in Kansas, and they say that among those records is what purports to be a receipt, executed by the plaintiff here, for the debt and interest due upon this loan, acknowledging that she has received the full debt and interest. We say to you that if the plaintiff executed such a receipt as that, she cannot recover in this case, because the execution of a receipt of that kind would be conclusive proof that she did authorize the land to be bought in, and that she did accept it in satisfaction of the debt and interest, but whether or not she did execute such a receipt we submit to you. This record establishes that there is there, with the records in Kansas, a paper, apparently her receipt, a paper purporting to be her individual receipt. If it is her receipt she cannot recover in this case. If it is not, and you find a guaranty, in our judgment she can. The defendants contend that it must be her receipt; that it would not be there unless it was her receipt; that you are not to assume forgery; that, in view of the fact that the procedings were authorized, and that this paper appears in connection with those proceedings, every presumption is in favor of the honesty and validity of that purported receipt. They further argue that it is much fairer to conclude that she is mistaken when she says she never executed such a receipt, than that somebody has dishonestly or improperly made it and placed it there. The plaintiff, on the other hand, contends that she never did sign such a receipt; that she never authorized the purchase of this land for her claim; that she did not even have knowledge of the foreclosure proceedings. As to the fact that she did not have knowledge of the foreclosure proceedings, she is contradicted by the testimony of Mr. Brown, and you have the testimony on one hand and on the other as to that fact. You will have to determine, if you reach this feature of the case, whether she did execute that receipt. Thus you see there are two questions. First, has the plaintiff fully and to your entire satisfaction demonstrated that these defendants guaranteed this loan? If not, you go no further, your verdict will be for the defendants. If so, then the plaintiff is entitled to recover, unless she authorized the purchase of the land in her name for the debt, and that raises, as we recall the testimony, the question whether or not she executed the receipt. We recall no other evidence in the case tending to show that she authorized the purchase of the land in her name unless it be found in that receipt. [2-10]

Errors assigned among others were (2-10, 13) above instructions, quoting them.

An examination of the whole case discloses no error calling for a reversal. The judgment is affirmed and appeal dismissed at costs of appellants.

Thomas W. Pierce and Alfred P. Reid, for appellants. -- The acts of a servant bind his master only when done in the course of the business committed to him or within the scope of an authority specially delegated. It is no part of the business of a clerk in a store to borrow money and draw bills or notes for it in the name of the firm: Kerns v. Piper, 4 Watts, 222; Hays v. Lynn, 7 Watts, 524; Moore v. Patterson, 28 Pa. 505; Hough v. Doyle, 4 Rawle, 291; Seiple v. Irwin, 30 Pa. 513; Hannay v. Stewart, 6 Watts, 487.

The assignment of a bond is not a guaranty. When the assignor has dealt fairly he is done with the bond and all responsibility arising from it: McNamara v. Lloyd, 19 Pa. 130; Flynn v. Allen, 57 Pa. 482.

The question whether each particular case comes within the statute or not depends, not on the consideration of the promise, but on the fact of the original debtor remaining liable, coupled with the absence of any liability on the part of the defendant or his property, except such as arises from the express promise: Nugent v. Wolfe, 111 Pa. 471; Maule v. Bucknell, 50 Pa. 39; McKinney v. Snyder, 78 Pa. 497.

A parol contract of guaranty that a third party will pay his note, the amount being over twenty dollars, cannot be enforced because of the act of assembly of April 29, 1855, requiring an agreement or memorandum in writing, or a note thereof, to bind one to answer for the debt of another of that amount: Dutton v. Pyle & Brown, 7 Pa. Superior Ct. 126; Jack v. Morrison, 48 Pa. 113; Townsend v. Long, 77 Pa. 143; Riegelman v. Focht, 141 Pa. 380; Elkin v. Timlin, 151 Pa. 491; Temple v. Baker, 125 Pa. 642; Dougherty & Co. v. Bash, 167 Pa. 429; Schafer v. Bank, 59 Pa. 150; Clark v. Partridge, 2 Pa. 13.

If an express contract is reduced to writing, the writing itself is exclusive evidence of the relations of the party: Fisher v. Diebert, 54 Pa. 460; Heebner v. Worrall, 38 Pa. 376; Connellogue v. English, 8 W. & S. 11; Roth v. Miller, 15 S. & R. 100; Miller v. Fichthorn, 31 Pa. 252; Fox et al. v. Foster, 4 Pa. 119; Cummings v. Antes, 19 Pa. 287; Edelman v. Yeakel, 27 Pa. 26; Maule v. Pleiss, 6 W. & S. 381; Leebrick v. Lyter, 3 W. & S. 365; Lloyd v. Farrell, 48 Pa. 73.

Where the charge as a whole tends to mislead the jury it is error: Penna. R.R. Co. v. Berry, 68 Pa. 272; Seigle v. Louderbaugh, 5 Pa. 490; Clay v. Irvine, 4 W. & S. 232; Garrett v. Gonter, 42 Pa. 143.

If it appear by the record that the plaintiff has no cause of action this Court will reverse the judgment in his favor although the point may not have been made in the court below or assigned for error: Northumberland County Bank v. Eyer, 60 Pa. 436; Maher v. Ashmead, 30 Pa. 345; Del. Div. Canal Co. v. McKeen, 52 Pa. 117; Com. v. Hoffman, 74 Pa. 105; Adams v. Betz, 1 Watts, 425; Hoffman v. Coster, 2...