Hepworth v. Henshall

• Decision Date: 13 February 1893
• Docket Number: 9
• Citation: Hepworth v. Henshall, 153 Pa. 592, 25 A. 1103 (Pa. 1893)
• Parties: Hepworth v. Henshall, Appellant
• Court: Pennsylvania Supreme Court

25 A. 1103

Hepworth v. Henshall, Appellant

153 Pa. 592

No. 9

Supreme Court of Pennsylvania

February 13, 1893

Argued January 19, 1893

Appeal, No. 9, Jan. T., 1893, by defendant, Samuel Henshall from decree of C.P. No. 2, Phila. Co., Dec. T., 1890, No 849, compelling assignment of half interest in patent to plaintiff, John W. Hepworth.

Bill in equity to compel assignment of interest in patent.

The case was referred to Albert B. Weimer, Esq., as master, who, after stating the pleadings as recited in the opinion of the Supreme Court, reported as follows:

"3. Nature of the issue:

"It is important at the outset to determine precisely the nature of the issue raised by the pleadings in the case. Defendant's counsel argued the case largely on the theory that the bill was intended to vary a written agreement by parol evidence of a contemporaneous oral agreement. Plaintiff's counsel, however, contended that the bill simply sought to enforce an oral agreement to assign a one half interest in a patent, the consideration for the oral agreement being the execution by the plaintiff of the partnership articles, and that the two agreements were collateral to each other, and that the oral agreement was in no way intended to modify or change the partnership articles. The importance of the distinction lies in the fact that the quantum of proof required in the first instance would be greater than that required in the second. The difficulty lies not so much in the averments of the bill as in the condition of the proofs. The bill avers: 'It was orally agreed between the plaintiff and the defendant, in consideration of entering into said articles of agreement and in consideration of other matters, that the plaintiff should be the owner of one-half interest in said machine, and in the letters patent which should be granted therefor.' These words seem clearly to imply that the execution of the written articles was merely a consideration for the agreement to assign one half the patent. [The plaintiff's testimony, in the main supports the words of the bill.] He says: 'Seeing Mr. Henshall frequently, and believing that this was a pretty good machine he was working on, I made this proposal to him: That in case I can succeed in raising enough money to buy out both my partners, I have a proposal to make to you. He says: "What is it?" I says: "I will give you half the business for half your machine." He said: "It is a go." I said: "All right."' The plaintiff also testified that William Hill, who was preparing the agreement, came to him and said: '"Well, John, look here about this agreement, what is Henshall going to put as an equivalent to your capital?" I says: "Why, I am getting half this machine." Henshall spoke up and says: "Yes, I have got no money, and, of course, I am giving John half this machine for half his business."' On cross-examination the plaintiff was asked this question, relating to matters just prior to the bringing of the suit: 'Q. Before you became dissatisfied, then you found fault with your partnership agreement, did you? A. No; I did not find fault with the partnership agreement. I only asked him to put up his half of the agreement, and he did not choose to do it. Q. At the time the verbal contract was made, you say you were to have one half of this machine in consideration of going into partnership with Mr. Henshall; that is right, is it? A. Not exactly. You are getting a little out of the road. I was to have one half of the machine for taking him in partnership with me. This is the way. I had the business. Q. Why do you say to me that Mr. Henshall has no right to the partnership? A. Because he has not put up the part he was to put up to get the partnership. Q. What do you mean by that? A. He promised to give me one half of the machine. Q. According to your understanding that he has no right to the partnership, it is because he has not assigned you one half of that machine, which is now in controversy; is that it? A. Certainly.'

"On the other hand, the plaintiff, in his cross-examination, stated that he considered the machine as belonging to the firm. There was also an account in the firm books against the machine, and a number of firm checks were drawn to pay expenses connected with it. It must be remembered, however, that the firm consisted only of Hepworth and Henshall, and, if the plaintiff's story is true as to the oral agreement, it is not particularly strange that no distinction was made between property actually in the business, and that which was owned in common by the two partners. [Assuming the plaintiff's testimony to be true, it seems to be reasonably certain that the real contract between the parties was that the defendant should assign to the plaintiff one half interest in plaintiff's business, and that everything was put into the partnership articles that the parties intended.]

"4. Quantum of proof.

"If it be conceded that the bill in this case is intended merely to enforce an agreement to assign a one-half interest in the patent, the plaintiff must overcome the responsive denial of the answer by the testimony of two credible witnesses, or by one witness, corroborated by other circumstances and facts which are equivalent in weight to a second witness: Story's Equity Jurisprudence, § 1528; Horton's Appeal, 13 Pa. 67. While the evidence must be such as to satisfy the conscience of a chancellor that the plaintiff is telling the truth, it does not seem necessary to exact such a rigid measure of proof as is required to contradict or vary the terms of a written instrument -- such a rule, for instance, as is laid down in Thomas v. Loose, 114 Pa. 35; Phillips v. Meiley, 106 Pa. 536; Spencer v. Colt, 89 Pa. 314, and kindred cases. In this case the plaintiff has offered to establish the averments of his bill by his own testimony, by that of William Hill and by certain circumstances which tend to corroborate the testimony of himself and Hill. The defendant, on the other hand, has, by his own testimony, denied the facts alleged by the plaintiff and Hill. He has also seriously impeached the veracity of Hill, and has offered in evidence certain circumstances, which, he claims, tend to prove his side of the case. Over one thousand pages of testimony were taken. Some of it is wholly irrelevant to the issue, and much of it is absolutely contradictory. The plaintiff tells one story and the defendant contradicts it and tells another wholly inconsistent with the former. In such a condition of the evidence, the only way to ascertain the truth as to the one fact in issue in the case is to carefully marshal the evidence on one side against that on the other; to weigh the inherent probabilities of the conflicting stories, and to consider with due caution the credibility of the witnesses. In such a case, it is due to both parties that the master should not simply state his conclusions, but should set forth fully the processes and reasoning by which he reached them.

"5. Plaintiff's proof.

"(a) Hepworth's testimony. The plaintiff, by his own testimony, supported all of the main averments of the bill. In his story there was no improbable elements, and he did not contradict himself. He was subjected to a cross-examination which covers eighty-five pages of the record of testimony and he was in no way shaken in the evidence which he gave in his examination in chief. An attempt was made to impeach his veracity by showing that a statement which he made on cross-examination was untrue. He was asked on cross-examination by defendant's counsel whether he had engaged in any other business during the continuance of the partnership, and in violation of the partnership articles. He replied that he had not. The defendant subsequently offered a witness to prove that the plaintiff had actually been engaged in the bicycle business. The offer was refused on the ground that the evidence as to the breach of the partnership article was irrelevant, and that an offer to contradict statements made by a witness on cross-examination as to collateral matters is improper. Evidence that the plaintiff engaged in another business would have been proper in an accounting between the partners, but it was clearly irrelevant to the present case. In Fry on Specific Performance, 2d ed., § 917, the rule is stated as follows: 'Where that, on the nonperformance of which by the plaintiff the defendant relies, is in its nature a collateral and separate contract, though between the same parties and entered into at the same time, and having relation to the same subject-matter as to the contract which the plaintiff seeks to enforce, the court will not consider the default by the plaintiff in respect of the one contract as any bar to the specific performance of the other, though such default may give the defendant a cross right of action on legal or equitable grounds.' If it be conceded that the evidence offered was irrelevant, it was improper to attempt to impeach the plaintiff's veracity by the use of it. In Greenleaf on Evidence, 14th ed., § 449, it is said: 'It is a well settled rule that a witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence, if he should deny it, thereby to discredit his testimony. And, if a question is put to a witness which is collateral or irrelevant to the issue, his answer cannot be contradicted by the party who asked the question, but it is conclusive against him.' See also to the same effect: Griffith v. Eshelman, 4 Watts, 51, 53; Elliott v. Boyles, 31 Pa. 65, 67; Wright v. Cumpstry, 41 Pa. 102, 110; Gaines v. Com., 50 Pa. 319, 325; Hildeburn v. Curran, 65 Pa. 59, 63; Hester v. Com., 85 Pa. 139, 157. The plaintiff's evidence as to the terms of his...