Girard Trust Co. v. George

• Decision Date: 22 March 1939
• Docket Number: 298
• Citation: 333 Pa. 418,5 A.2d 221
• Parties: Girard Trust Company, Trustee, v. George v. Cresson Company et al., Appellants
• Court: Pennsylvania Supreme Court

5 A.2d 221

333 Pa. 418

Girard Trust Company, Trustee, v. George v. Cresson Company et al., Appellants

No. 298

Supreme Court of Pennsylvania

March 22, 1939

Argued January 4, 1939.

Appeal, No. 298, Jan. T., 1938, from judgment of C.P. No. 6 Phila. Co., Sept. T., 1937, No. 2928, in case of Girard Trust Company, Trustee, v. George V. Cresson Company et al trustees. Judgment affirmed.

Proceeding upon scire facias sur mortgage. Before MacNEILLE, J.

The opinion of the Supreme Court states the facts.

Verdict for defendants. Motion by plaintiff for new trial granted. Defendants appealed.

Error assigned, among others, was granting of new trial.

The judgment is affirmed.

I Irving Tubis, with him J. Lawrence Wetherill, for appellants.

W. Richardson Blair and Wintersteen & Williams, for appellee, were not heard.

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

OPINION

MR. MAXEY, JUSTICE.

Plaintiff was the holder of a first mortgage of $125,000 and defendants the holders of a second mortgage of $250,000 on premises at 18th and Allegheny Avenue, Philadelphia. In February, 1933, defendants became the owners of the real estate by foreclosure and on October 25, 1937, plaintiff instituted foreclosure proceedings by sci. fa. sur mortgage against defendants.

As a bar to plaintiff's attempt to foreclose, defendants filed an affidavit of defense to the sci. fa. and subsequently upon plaintiff's rule defendants filed their plea by way of confession and avoidance, asserting an extension agreement entered into on January 4, 1933, and contending that the consideration for this agreement was the payment of $22,500 and the obtaining of a lease satisfactory to the plaintiff. Plaintiff agreed not to foreclose until October 1, 1933. In the midst of the trial, defendants' counsel conceded that the plaintiff "carried this agreement out" and asked leave to amend the affidavit of defense by adding thereto the following: "And by oral agreement entered into on August 8, 1933, plaintiffs agreed with the defendants that they would not foreclose the said mortgage if the defendants would procure for the premises a lease, the terms of which would be satisfactory to the plaintiff." Defendants procured a prospective tenant and contended that on August 8, 1933, they submitted to plaintiff a lease which the latter subsequently approved and that plaintiff agreed not to foreclose its mortgage during the term of the lease which expires May 1, 1939, with an option to the tenant to renew for a further term of five years. Plaintiff denied entering into this latter agreement and contended that all testimony concerning it was oral and that it was flatly contradicted by plaintiff's witnesses.

The trial judge submitted to the jury the question of whether or not an agreement had been entered into on August 8, 1933. Plaintiff (appellee here) in its paper book complains: "In charging the jury, no attempt was made by the trial court to clarify the issues presented. The agreement of January 4, 1933, was out of the case, yet the trial court emphasized said agreement in its charge." At the conclusion of his charge, the trial judge refused the points for instructions to the jury submitted by both sides and noted an exception for each. On April 11, 1938, the jury brought in a verdict for the defendants and on April 13th the court below allowed plaintiff to file a general exception to the charge. Plaintiff's motion for judgment n.o.v. was refused but its motion for a new trial was granted, the court below saying, inter alia: "The court did charge that there was a burden on the defendants to establish a defense in this case by a preponderance of the evidence. We feel that this was not sufficiently emphasized, as we should have gone further in indicating to the jury how it should measure the evidence of the defendants to see if it met the test of the greater weight of evidence being in favor of their contention, if any. For this reason, a new trial was granted." From this order defendants appealed.

In their "statement of questions involved," appellants ask: "Did the lower court err in granting a new trial, where it assigned as sole reason therefor its failure to sufficiently charge the jury as to weight of the evidence, where no exceptions were taken to such failure to charge and general (not specific) exceptions were filed two days after the verdict and one day after the motion for new trial was filed?"

We find no abuse of discretion on the part of the court below in granting a new trial for the reasons the court assigned. We said in Sears v. Birbeck, 321 Pa. 375, 383, 184 A 6: "It is a primary duty of the trial judge -- a duty that must never be ignored -- in charging a jury to clarify the issues so that the jury may comprehend the questions they are to decide. Such clarification is impossible without clear instruction as to the burden of proof, the shifting of the burden in certain states of the record, and if plaintiff has offered prima facie proof of what he has pleaded, the duty then devolving on the defendant to come forward with evidence. See Henes v. McGovern, 317 Pa. 302, 176 A. 503." All the court below said in its charge to the jury in respect to the burden of proof is as follows: "Ordinarily the burden is on the plaintiff to prove...