Gorman v. Bigler

• Decision Date: 10 October 1898
• Docket Number: 13-1898
• Citation: 8 Pa.Super. 440
• Parties: James L. Gorman, Appellant, v. W. D. Bigler, Executor of John W. Gorman, deceased
• Court: Pennsylvania Superior Court

8 Pa.Super. 440

James L. Gorman, Appellant, v. W. D. Bigler, Executor of John W. Gorman, deceased

No. 13-1898

Superior Court of Pennsylvania

October 10, 1898

Argued February 15, 1898 [Syllabus Matter]

Appeal by plaintiff, from judgment of C. P. Clearfield Co.-1894, No 61, on verdict for defendant on point reserved.

Assumpsit. Before Gordon, P. J.

The facts sufficiently appear in the opinion of the court.

The jury found a verdict for plaintiff for $ 490.99, also the following special verdict: " And further we find as a special verdict that the demise or bequest made to James L Gorman by the last will and testament of John W. Gorman was on November 8, 1892, the date of the probate of the will of said John W. Gorman, equivalent to and of the value of $ 540.78."

The court below on motion entered judgment for defendant non obstante veredicto on the question of law reserved by the court. Plaintiff appealed.

Errors assigned were in deciding in their opinion on the motion for judgment in favor of defendant non obstante veredicto " that plaintiff's only right was to recover under the contract and cause of action set out in the statement. The defendant, being an executor, could only be called upon legally to defend against the claim as thus pleaded and had no notice of any intention to make proof of claim under a different contract. And while it is true plaintiff, on application, would have been granted leave to amend, no such request was made." In deciding in their opinion upon the motion for judgment non obstante veredicto, as follows: " There was scarcely sufficient evidence of the existence of a contract with a consideration binding upon the decedent to justify submitting the case to the jury, apart from the question of the sufficiency of the statement." In holding in their opinion upon the motion for judgment non obstante veredicto, as follows: " So that while the jury in rendering verdict for plaintiff must have found that a valid contract was entered into, yet as no such contract was in fact either pleaded or proven, the case could have been withdrawn from the jury by binding instructions to find for defendant and the matter must now be corrected by entering judgment for defendant on this motion." In holding in their opinion upon the motion for judgment non obstante veredicto, as follows: " There is considerable force in the position that if the contract was made as claimed by plaintiff, it was a satisfaction of the judgment as to the costs and attorneys' commissions, and the remedy was by an application to the court to have it so marked of record." In making the following order upon the motion for judgment non obstante veredicto: " Therefore, now February 9, 1897, in accordance with the foregoing views, the rule in this case is made absolute and it is ordered, adjudged and decreed that judgment be entered in favor of defendant non obstante veredicto upon the first legal question reserved."

Reversed.

S. V. Wilson, for appellant. -- The court below erred in holding that any insufficiency in plaintiff's statement is cause for setting aside the verdict or entering a verdict now in favor of the defendant non obstante veredicto: Act of March 14, 1872, P. L. 25; Chapin v. Iron Co., 145 Pa. 478; Fire Works Co. v. Polites, 130 Pa. 536.

Where plaintiff's statement is deemed insufficient it must be demurred to. A trial on the merits cures the defects: Eckert v. Schoch, 155 Pa. 530; Grohmann v. Kirschman, 168 Pa. 189.

If there was any evidence which alone would justify an inference of the disputed facts upon which plaintiff's right to recover rests, it must be submitted to the jury: Bucklin v. Davidson, 155 Pa. 362.

The consideration shown on the evidence in this case was sufficient: Austyn v. McLure, 4 Dallas, 226; Hind v. Holdship, 2 Watts, 104; Kidder v. Boom Co., 24 Pa. 193; Harlan v. Harlan, 20 Pa. 303.

A benefit incurred from service rendered, though purely voluntary, is sufficient consideration to support an express promise: Ins. Co. v. Whitney, 70 Pa. 249.

Frank Fielding, with him Geo. R. Bigler, for appellee. -- The allegata and the probata were fatally at variance and the defendant's first point should have been affirmed: Ryder v. Jacobs, 182 Pa. 620.

A promise to give up something which the promisor is legally entitled to, without consideration to support it, is void, and cannot be enforced at law: Patterson's Appeal, 116 Pa. 8.

Money voluntarily paid upon a claim of right cannot be recovered back, however unfounded such a claim may afterwards turn out to be: Gould v. McFall, 118 Pa. 455.

Where a legal obligation exists, cumulative promises to perform it, unless upon a new consideration, are a nullity: Wimer v. Worth Twp., 104 Pa. 317. See also Walstrom v. Hopkins, 103 Pa. 218; Shorb v. Shultz, 42 Pa. 207.

A legacy to a creditor which is equal to or greater than his debt, and which is not contingent or uncertain, is presumed to be a satisfaction of the debt: Wesco's Appeal, 52 Pa. 195.

Before Rice, P. J., Wickham, Beaver, Orlady, Smith and Porter, JJ. Opinion by Smith, J.

OPINION

SMITH, J.

This action was brought to recover the amount of attorney's commissions and costs which had been collected on two judgments wherein John W. Gorman was plaintiff and James L Gorman was defendant. Those judgments were entered by the plaintiff on judgment notes without the intervention of an attorney, and no professional services were required until executions were issued. The items for which suit is brought were believed by James to be exorbitant, and he instructed his attorney, Mr. Swope, to object to them at the time the executions were issued. The attorney had a conversation with John in relation to the matter and the latter said: " If James could make an arrangement to get his money, get somebody to furnish the money, that he [John] would be willing to pay the costs and expenses. All he wanted was his money." This the attorney promised to try to do; and thereupon James endeavored to find a purchaser for the real estate which had been seized under the executions. Afterward, through the efforts of James, a sale of the land to General Patton was effected, and the debt, interest, costs...