Davis v. Steiner

• Citation: 14 Pa. 275
• Court: United States State Supreme Court of Pennsylvania
• Decision Date: 18 October 1850
• Parties: Davis <I>versus</I> Steiner.

14 Pa. 275

Davis versus Steiner.

Supreme Court of Pennsylvania.

October 18, 1850.

ERROR to the Common Pleas of Westmoreland county.

The case was argued by Foster, for plaintiff in error.—Reference to 6 W. & Ser. 213; 4 Barr 321; Hazelberger v. Reeves, not yet reported; Reader v. Grim, Law Journal, August, 1850, p. 65.

Cowan, for defendant, the executor.—10 Watts 120; 6 id. 220; and the cases cited on the part of plaintiff in error.

The opinion of the court was delivered, Oct. 18th, by ROGERS, J.

On a demurrer to evidence, the party demurring admits all the facts which the evidence tends or conduces to prove though but in the slightest degree or which the jury might, with the least degree of propriety, have inferred from it. Every fact is taken against the party demurring as true, and no testimony can be considered which impugns its truth: Fry v. Decamp, 15 Ser. & R. 231; Crawford v. Jackson, 1 Rawle 431; McKinley v. McGregor, 3 Whar. 376; Duerhagen v. United States, 2 Ser. & R. 185. The court is not by the demurrer substituted for the jury, whose duty it is to weigh the testimony, but the case must be ruled on the evidence adduced, in strict subordination to the rules stated.

The evidence proves, or, which is the same thing, tends or conduces to prove this state of facts. On the 5th March, 1819, plaintiff sold, by articles of agreement, a tract of land to Jacob Dry, for $2500, and received $1000 in part payment of the purchase money. About the time of sale, judgments were entered against the vendor the plaintiff, for about $600. On one of the judgments, execution issued, and the vendor's interest in the land was levied on. After the first contract, but before the sheriff's sale, an agreement was entered into between plaintiff, Philip Kuhns defendant's testate, who was his brother-in-law, and the purchaser Jacob Dry. Kuhns was to bid off the land, at the sheriffs sale, and take a deed in his own name. He was to pay the judgment against Davis, and to receive from Dry the unpaid purchase money as it became due, and to make Dry a deed, in pursuance of the original contract. After being reimbursed the money advanced, it was agreed that the residue should be paid by Kuhns to Davis. In pursuance of the contract, the money remaining due was regularly paid to Kuhns, the last payment in 1827, when Kuhns executed a deed to Dry. The suit was brought on the 22d January, 1848, to recover the amount which Kuhns received over what he paid to the sheriff. Jacob Dry, one of the contracting parties, whose testimony, as we have seen, must be taken to be true, furnishes abundant proof of the contract as above stated; at least, it cannot with any plausibility be denied, that it tends or conduces to prove it; nor can it be alleged there would have been the least degree of impropriety in the jury inferring the contract from his evidence alone. His statement derives strength from the relationship between the parties, and, in addition, it is corroborated by repeated confessions of Kuhns, as detailed in the evidence of all the other witnesses who were examined.

From the whole testimony, the result is plain, that the jury not only might, but were bound to believe there was a contract between the parties, such as is alleged by the plaintiff. It must be remarked that it is not pretended by the defendant that he performed the contract, by the payment of a single dollar to Davis, although he concedes he received all the purchase money, and does not deny that he only paid, at the sheriff's sale, $1050. Conceding these facts, the amount of the indebtedness may be readily ascertained. It clearly is the difference between the amount received from Dry, and the money paid at the sheriff's sale,...