Ferguson v. Rafferty

• Decision Date: 07 October 1889
• Docket Number: 229
• Citation: 18 A. 484,128 Pa. 337
• Parties: J. B. FERGUSON v. T. L. RAFFERTY
• Court: Pennsylvania Supreme Court

18 A. 484

128 Pa. 337

J. B. FERGUSON v. T. L. RAFFERTY

No. 229

Supreme Court of Pennsylvania

October 7, 1889

Argued April 22, 1889

ERROR TO THE COURT OF COMMON PLEAS OF CLEARFIELD COUNTY.

No. 229 July Term 1888, Sup. Ct.; court below, No. 22 March Term 1883, C.P.

To the number and term of the court below, Thomas L. Rafferty brought replevin against John B. Ferguson, for two lots of pine saw-logs, one containing 85,000 feet and another 160,000 feet, taken from lands known as the James Rafferty lands in Penn township. The defendant pleaded non cepit and property.

At the trial on May 23, 1888, the following facts were made to appear:

Thomas Rafferty, the father of the plaintiff died in May, 1870 leaving to survive him a widow, Martha Rafferty, and eight children, among them T. L. Rafferty, the plaintiff, James Rafferty, Arthur Nelson Rafferty, David Rafferty and Mary Jane Rafferty. By his will, duly admitted to probate, said Thomas Rafferty devised to his son James Rafferty the land upon which the timber in controversy had grown, and devised and bequeathed certain other property to Arthur Nelson, David and Mary Jane, who were of full age but were deaf mutes, and appointed John B. Rafferty and John Clark "sole guardians of my aforementioned children," giving them absolute control over all the property devised or bequeathed to them.

The land devised to James Rafferty contained about ninety-six acres, was timber land, and about sixty acres of the timber had been cut away prior to its purchase by the testator. Of the remaining thirty acres, still covered by timber, James had cut away about six acres, when he died intestate unmarried and without issue, leaving to survive him his mother Martha Rafferty, and his seven brothers and sisters. Subsequently, all said brothers and sisters except Arthur Nelson, David and the plaintiff, died, some without issue and some leaving issue. On January 28, 1878, upon the petition of Martha Rafferty to the Orphans' Court, Grier Bell, Jr. and Richard Danver, Jr., were appointed trustees of Arthur N and David Rafferty, vice John B. Rafferty and John Clark. These substituted trustees filed a bond, which was approved.

Under objections and exceptions sealed for the defendant, covered by the first, second and third assignments of error, the plaintiff read in evidence a sealed agreement in writing, dated May 1, 1881, between Richard Danver and T. L. Rafferty, wherein "Richard Danver, guardian for Nelson and David Rafferty, of the first part," agreed to sell to T. L. Rafferty all the white pine timber on the land devised to James Rafferty, for the price of five cents per cubic foot, payable in two years from date.

Also under objection and exception sealed for the defendant covered by the fifth assignment of error, the plaintiff read in evidence the record of a judgment in favor of Richard Danver, trustee, against T. L. Rafferty, for $1,100, entered on August 14, 1883, upon a judgment obligation given by the plaintiff for the purchase money in full of said logs.

The plaintiff then read in evidence an article of agreement between himself, of the one part, and E. W. Hepburn and W. C. Hoover, of the other part, dated November 19, 1881, whereby he had sold the timber embraced in his contract of May 1, 1881, with Richard Danver to Hepburn and Hoover, for the price of six and one half cents per cubic foot; and, after testifying that Hepburn and Hoover had subsequently sold their interest under this contract to D. L. Ferguson, and applied to plaintiff to release them and take D. L. Ferguson in their stead, he put in evidence a supplementary agreement indorsed on the contract of November 19, 1881, as follows:

"And now, this 2d day of December, 1882, I, Levi Rafferty, do agree to release E. W. Hepburn and W. C. Hoover on the within article, and to transfer the same to D. L. Ferguson, and that the said D. L. Ferguson is to pay the balance due on the within agreement as soon as the logs are all delivered in Curry Run. Said logs are to be scaled straight and sound, and instead of six and one half cents per cubic foot, to be six and 50-100 dollars per thousand feet.

"Witness our hands and seals. Done this 2d day of December, 1882.

"T. L. RAFFERTY, [L.S.]"

"D. L. FERGUSON, [L.S.]"

The plaintiff being still on the stand, his counsel proposed to prove by him what was said and done when the last mentioned contract was executed. The offer being objected to, it was put in writing, but the written offer was lost during the trial and never recovered. As reproduced by the plaintiff's counsel who dictated it at the trial, it was presented in the paper-books as follows:

Plaintiff offers to prove by witness that he knew, at the time that E. W. Hepburn came to get his consent to a transfer of the Hoover and Hepburn agreement, that D. L. Ferguson was not a responsible purchaser; that he stated to Hepburn that he would not trust him without security; that they then went to Hepburn's house where Ferguson and Hoover were waiting; that he there told Ferguson that he would not consent to a transfer of the Hoover and Hepburn contract to him unless he would give him security; that Ferguson then agreed that he might hold the logs until he got his money; that when Ferguson had written out the agreement, and he found that it said nothing about the security, he objected to it; that Ferguson then said, you have the logs for security, you have these witnesses to that and witnesses are as good as if it were so stated in this contract; that Ferguson then called W. C. Hoover and E. W. Hepburn as witnesses to this parol agreement, and then the plaintiff signed it; that before these logs were all taken off the land Ferguson became insolvent; that judgments amounting to upwards of $15,000 were entered up and executions issued; that as soon as plaintiff learned of this he went to Clearfield and issued a writ of replevin; that before it was served the logs had been levied on, and that he then went to the sheriff's sale at Lumber city and gave written notice at the sale of his lien for unpaid purchase money: The purpose of the offer being to show that plaintiff knew on December 2, 1882, that Ferguson was not a responsible purchaser, and would not have signed the written contract without security for the logs; that the alleged parol agreement was the inducing cause of his signing it; and for all other purposes for which it is competent.

The offer being objected to by the defendant, the objection was overruled and the offer admitted; exception.

The plaintiff's testimony sustaining the offer, appears sufficiently in the opinion of the Supreme Court.

E. W. Hepburn, called for plaintiff, testified that he was present when the contract of plaintiff with D. L. Ferguson was executed:

Q. What, if anything, was said there between Ferguson and Rafferty with reference to security for the logs mentioned in that contract?

Defendant's counsel object to the question because the contract is in writing and speaks for itself.

By the court: Supposing this to be part of the written offer, already ruled upon, we overrule the objection, admit the evidence, and seal a bill for defendant.

The testimony of the witness corroborated that of the plaintiff, and is also sufficiently given in the opinion of the Supreme Court.

It was further shown in the plaintiff's case, that after his purchase of the timber as already set forth, D. L. Ferguson proceeded to cut and remove it from the land; that after it had all been cut down and converted into logs, and the greater part of it taken off, on February 10, 1883, a judgment was entered against D. L. Ferguson in favor of John B. Ferguson, the defendant in the present case, for $7,300; that a fieri facias was issued the same day on this judgment and placed in the hands of the sheriff, who levied on all of the personal property of D. L. Ferguson, including the logs in controversy, which were sold under said writ on February 28, 1883, and purchased by John B. Ferguson, after the following notice to bidders at the sale was read:

"To R. NEWTON SHAW, high sheriff, and to all bidders and execution creditors:

"Sirs: You are hereby notified that the two certain lots of pine saw logs, to wit: 80,000 feet, more or less, pine saw logs in the woods on Rafferty's land in Penn township, stamped W 4 T, and 155,000 feet, more or less, pine logs in Curry Run, stamped W 4 T, are the property of Thomas L. Rafferty, and not of D. L. Ferguson. The conditions of the contract not having been complied with, and the purchase money or stumpage paid as per agreement, the said Thomas L. Rafferty gives notice that he will hold said logs until paid for, and will assert his rights as against the purchase of the same under the said levy and sale.

"T. LEVI RAFFERTY,

"By his attorney, J. F. McKENRICK.

"CLEARFIELD, PA.,

"February 27, 1883."

The defendant being sworn testified that he did not hear the notice read at the sale; that he had no knowledge of any parol agreement between the plaintiff and D. L. Ferguson; that before paying the sheriff for the logs purchased by him, and before giving the replevin bond filed in this case, he had examined the written contract between the plaintiff and Hepburn and Hoover, and that between the plaintiff and D. L. Ferguson, had consulted counsel in regard to them, and as a result of such inquiry he gave his claim-property bond. The defendant put in evidence the deposition of D. L. Ferguson, in which the witness testified that "there was no other contract made except that made in the supplemental agreement."

At the close of the testimony, the court, KREBS, P.J., charged the jury, in part as follows:

* * *

Now gentlemen of the jury, the plaintiff in this case contends that a...