Deemer v. Weaver

• Decision Date: 05 October 1936
• Docket Number: 69
• Citation: 187 A. 215,324 Pa. 85
• Parties: Deemer et al., Appellants, v. Weaver, Exrx
• Court: Pennsylvania Supreme Court

187 A. 215

324 Pa. 85

Deemer et al., Appellants, v. Weaver, Exrx

No. 69

Supreme Court of Pennsylvania

October 5, 1936

Argued April 16, 1936

Appeal, No. 69, Jan. T., 1936, by plaintiffs, from decree of C.P. Lehigh Co., June T., 1934, No. 96, in case of Laura J Deemer et al. v. Howard T. Weaver, executrix. Judgment reversed and venire facias de novo awarded.

Assumpsit. Before HENNINGER, J.

The opinion of the Supreme Court states the facts.

Compulsory nonsuit entered. Motion to take it off refused. Plaintiffs appealed.

Error assigned was refusal to take off nonsuit.

The judgment is reversed and a venire facias de novo awarded.

Russell C. Mauch, with him Milton J. Goodman, for appellants.

Ralph H. Schatz, with him Nimson Eckert and Arcus F. Shaffer, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES JJ.

OPINION

MR. JUSTICE BARNES:

Anna C. Lerch died on August 14, 1931, a resident of Lehigh County. During her lifetime she was the owner of a life interest in a certain parcel of real estate located in Shimersville, Northampton County. The plaintiffs, nieces of the decedent, were the owners of the remainder interest in fee of this property. For sometime prior to July, 1919, the decedent, then eighty years of age, sought plaintiffs' approval to a sale of the property, representing that its proximity to the works of the Bethlehem Steel Company made it undesirable as a dwelling, and that its value was steadily diminishing. She stated to the remaindermen that she would not continue to reside in the property, but would abandon it and not keep it in repair if it were not sold.

In July, 1919, she volunteered to act for the plaintiffs and also in her own behalf to sell the property in fee for $5,000. The decedent suggested and agreed that the proceeds of the sale should be placed in a trust fund in substitution for the real estate, the income of which fund she should receive during her life, and upon her death the principal should then be payable to the plaintiffs as remaindermen.

Plaintiffs were reluctant to sell the property for $5,000, objecting that the sum was inadequate, but decedent insisted that the price was the best obtainable, and offered to add $500 of her own money to the trust fund of the proceeds if plaintiffs would permit her to make the sale. Plaintiffs then gave their consent and upon the completion of negotiations, which they left entirely to Mrs. Lerch, joined in a deed dated July 11, 1919, conveying the property to the Saucon Land & Improvement Company, a subsidiary of the Bethlehem Steel Company. The consideration stated in the deed was $5,000. This sum, together with $500 supplied by Mrs. Lerch, was duly placed in trust with a bank, according to the agreement of the parties.

Following the death of Mrs. Lerch in 1931, a question arose as to the exact amount of the trust fund. This led plaintiffs to an investigation of the records of the Bethlehem Steel Company, which revealed to them for the first time that the price actually received by their aunt for the property in Shimersville was $9,000. Plaintiffs discovered that this price was paid in the following manner: At the instance of Mrs. Lerch, the agent of the Saucon Company, acting for the purchaser, caused the consideration to be stated in the deed as $5,000; this sum was delivered to the bank which was to hold the trust fund, and the balance of the consideration, amounting to $4,000, was paid direct to Mrs. Lerch as a "bonus." This was shown by a receipt for said sum duly signed by Mrs. Lerch.

Upon the discovery of these facts plaintiffs instituted this action against the executor of their aunt's estate, alleging that the decedent had acted as their agent in negotiating the sale, and that the concealment of a part of the purchase price was a fraudulent violation of her duty as agent. At the trial a compulsory nonsuit was entered upon the close of plaintiffs' testimony. From the refusal of the court in banc to take off the nonsuit, and from the judgment accordingly entered for the defendant, plaintiffs have appealed.

As this is an appeal from a refusal to take off a nonsuit, we must view the evidence in the light most favorable to plaintiffs: Ketchum v. Conneaut Lake Co., 309 Pa. 224; Dobrowolski v. Penna. R.R. Co., 319 Pa. 235; Foley v. Wasserman, 319 Pa. 420; Burns v. Pittsburgh, 320 Pa. 92.

This suit was instituted in 1934, almost fifteen years after the transaction upon which plaintiffs base their claim, and three years after the decease of Mrs. Lerch. Under these circumstances the learned court below held that plaintiffs are barred from recovery by the statute of limitations. In reaching this decision the court relied upon Smith v. Blachley, 198 Pa. 173, and held that under the rule there enunciated plaintiffs cannot recover because there was no active concealment by the decedent of her fraud.

It is a familiar principle, established by a long line of decisions of which Smith v. Blachley, supra, is one of the most frequently cited, that mere silence or concealment does not toll the running of the statute, but that when the wrongdoer adds to his original fraud affirmative efforts to divert mislead or prevent discovery, he gives to his original fraudulent act a continuing character which deprives it of the protection of the statute: Wickersham v. Lee, 83 Pa. 416; Sankey v. McElevey, 104 Pa. 265; Hoagland v. Mulford, 298 Pa. 588; Johnson v. Hobensack, 318 Pa. 305. The fundamental principle stated...