Harris v. Mercur

• Decision Date: 21 April 1902
• Docket Number: 337
• Citation: 202 Pa. 318,51 A. 971
• Parties: Harris v. Mercur, Appellant (No. 2)
• Court: Pennsylvania Supreme Court

51 A. 971

202 Pa. 318

Harris v. Mercur, Appellant (No. 2)

No. 337

Supreme Court of Pennsylvania

April 21, 1902

Argued March 17, 1902

Appeal, No. 337, Jan. T., 1902, by defendant, from judgment of C.P. Bradford Co., May T., 1894, No. 640, dismissing exceptions to adjudication in case of Nathaniel C. Harris v R. A. Mercur, Executor of Ulysses Mercur, Deceased. Affirmed.

Assumpsit upon a contract in writing. Before FANNING, P.J., without a jury.

The contract upon which suit was brought was as follows:

"Memorandum of agreement, made March 4, 1880, between N. C. Harris of the first part, Ulysses Mercur of the second part, and H. W Patrick of the third part. Whereas, on or about the day of December, 1879, J. H. Webb, as trustee for said Harris, purchased of J. Welles Hollenback, and also of Edward Welles, certain debts, demands and judgments which each held against the estate of Col. C. F. Wells, Jr., together with all the collaterals either held to secure the payment thereof, and especially a certain contract entered into between said C. F. Wells, Jr., and Asa Packer, bearing the date of October 25, 1865, which said C. F. Wells, Jr., had assigned to said Ellen Wells in her lifetime as collateral; and whereas, said Harris has paid part and secured the payment of the residue agreed to be paid by his said trustee, and the latter had assigned and transferred all the property and claims thus purchased to said Harris. Now, therefore, it is hereby declared and agreed that said Harris holds the same as to the one fourth thereof in trust for Mercur, and one fourth in trust for said Patrick and one half for himself.

"And whereas, the interest belonging to the estate of said C. F. Wells, Jr., in said contract with Asa Packer is about to be sold by the administrator of said Wells estate, and it is understood and expected that said Harris will and shall bid off the same. Now, in case he does, or if bid off by any one of the three parties to this agreement, it shall be held by said Harris in like shares and proportions as the property heretofore purchased, that is, one half for himself and one fourth for each said Mercur and said Patrick, and in case any other debts of any kind against the estate of said C. F. Wells, Jr., shall be purchased, said Mercur and said Patrick shall each have one-fourth interest or share therein, and each shall pay to said Harris the one-fourth sum he has or may be required to pay therefor, unless the same shall be realized out of the property or claims now or hereafter to come into his hands. It is understood that neither said Mercur nor said Patrick shall in any event be liable for any costs and expenses heretofore contracted or incurred by said Harris in any negotiations or purchases heretofore made in the purchase or settlement of any claim or claims, any further than said Mercur and said Patrick shall each pay the one fourth of the legal expenses necessarily incurred in prosecuting such suit or suits as may be deemed advisable to institute. No settlement or compromise shall be made without the assent of all the parties hereto living. If any be dead, then the assent of those surviving and the personal representatives of those dead.

"In witness whereof we have hereunto set our hands and seals the day and year first above written."

It was found necessary to begin a suit to enforce a claim held by the parties, and Harris advanced the money from time to time necessary to pay expenses. The present action was brought for contribution. The court entered judgment for the plaintiff for an amount found to be due by the estate of the decedent. In this amount was included interest on the advances from the time they were made.

Exceptions to the allowance of interest were filed by the defendant, and overruled by the court.

Errors assigned were in overruling the exceptions.

The assignments are overruled and the judgment is affirmed.

C. LaRue Munson, with him Addison Candor, for appellant. -- Plaintiff was not entitled to interest: Williams v. Craig, 1 Dallas, 315; McClintock's App., 29 Pa. 360; Kelsey v. Murphy, 30 Pa. 341; Adams v. Palmer, 30 Pa. 348; Second & Third St. Passenger Railway Co. v. Phila., 51 Pa. 468; Minard v. Beans, 64 Pa. 413; Weir v. Allegheny, 95 Pa. 415; West Republic Mining Co. v. Jones, 108 Pa. 68; Richards v. Citizens Nat. Gas Co., 130 Pa. 39; Booth v. Pittsburg, 154 Pa. 483; Meyers's Estate, 179 Pa. 161; Fleming's Est., 184 Pa. 85; Grubb's App., 66 Pa. 129; Brown's App., 89 Pa. 139.

H. F. Maynard and E. Overton, for appellee, cited: West Republic Mining Co. v. Jones, 108 Pa. 68; Brenner v. Carter, 10 Pa. Dist. Rep. 459; Rapalje v. Emory, 1 Dall. 349; Dilworth v. Sanderling, 1 Binney, 488; Sims v. Willing, 8 S. & R. 103.

Before MITCHELL, DEAN, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE MESTREZAT:

By the written agreement of March 4, 1880, it was declared that Harris held the one fourth of the claims in trust for Mercur, one fourth in trust for Patrick and one half for himself. It was provided in the agreement that neither Mercur nor Patrick should in any event be liable for any costs or expenses further than that they "shall each pay the one fourth of the legal expenses necessarily incurred in prosecuting such suit or suits as may be deemed advisable to institute." Pursuant to this agreement, in October, 1880, Harris for himself and the other parties filed a bill in equity in the common pleas of Bradford county to enforce a claim held by them against Packer's executors and the Lehigh Valley Railroad Company. The case was heard by a master, then by the common pleas and subsequently on appeal by the Supreme Court. It was settled by the parties in April, 1888, each party agreeing to pay his own witnesses and for subpoenaing them, also, one half of the record costs except the prothonotary's, all of which were to be paid by the plaintiff. The learned trial judge before whom the case was tried under the act of 1874 found "that it was necessary that money be advanced to pay surveyors, witnesses, hotel bills, traveling expenses, officers' fees, stenographer's bills, printers, etc., and the said N. C. Harris, with the knowledge of Judge MERCUR, did from time to time advance large amounts of money in and about the carrying on of said suit, beginning immediately after trial of said case began and continuing until at or about the time this action was brought for contribution."

In April, 1894, this action was brought by Harris against the executor of Judge MERCUR to recover the latter's share of the expense incurred in the litigation. The court below found in favor...