Humbert v. Meyers

• Decision Date: 07 January 1924
• Docket Number: 66
• Citation: Humbert v. Meyers, 279 Pa. 171, 123 A. 733 (Pa. 1924)
• Parties: Humbert, Appellant, v. Meyers et al
• Court: Pennsylvania Supreme Court

123 A. 733

279 Pa. 171

Humbert, Appellant, v. Meyers et al

No. 66

Supreme Court of Pennsylvania

January 7, 1924

Argued October 18, 1923

Appeal, No. 66, Oct. T., 1923, by plaintiff, from judgment of C.P. SomersetCo., Feb. T., 1917, No. 18, for defendants n.o.v., in case of Sarah J. Humbert v. Ada E. Meyers and N Peter Meyers.Reversed.

Issue to determine validity of judgment.Before BARNETT, P.J. specially presiding.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff.Judgment for defendants n.o.v. Plaintiff appealed.

Error assigned was judgment n.o.v., quoting record.

The judgment is reversed and is here entered on the verdict for the plaintiff in the issue.

Cyrus A. Davis, of Eckles & Davis, with him Uhl & Early, for appellant, cited as to agency: Singer Mfg. Co. v. Christian,211 Pa. 534;Chicago Cottage Organ Co. v. McManigal, 8 Pa. Superior Ct. 632;Jones v. Nat. Building Assn., 94 Pa. 215.

Clarence L. Shaver, with him Norman T. Boose, for appellees, cited as to agency: Slease v. Naysmith,14 Pa.Super. 134;B. & O. Relief Assn. v. Post,122 Pa. 579;Am. Car & Foundry v. Water Co.,221 Pa. 529;Fee v. Express Co.,38 Pa.Super. 83;Kroll v. Phila.,240 Pa. 131;Raby v. Cell,85 Pa. 80;Ludwig v. Gorsuch, 154 Pa. 413.

Before FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE WALLING:

Sarah J. Humbert owned an interest in certain coal lands in West Virginia and Ada E. Meyers and N. Peter Meyers owned a property known as the Fairview Hotel, at Garrett, in Somerset County, Pennsylvania, and a lot adjoining the hotel property, and forming a part of it, was owned by their father, William P. Meyers.On July 18, 1916, the latter entered into a written contract with Mrs. Humbert to exchange the hotel property, for her coal lands.The agreement contained, inter alia, a clause as follows: "It is further understood by both parties hereto that said party of the second part [William P. Meyers] will negotiate for said party of the first part hereto [Sarah J. Humbert] a loan for, or furnish five thousand ($5000.00) Dollars on first mortgage and bond on said described Garrett property for a term of three years bearing six per cent interest payable semiannually."The words "and bond" following the word "mortgage" in the clause quoted above were omitted from the printed record, but inserted at bar by agreement of counsel.The transfers were consummated November 15, 1916, at the office of G. D. Howell, Esq., in Pittsburgh.Meantime Meyers had sold the coal lands in question and at his request Mrs. Humbert made the deed therefor direct to the purchaser, who paid Meyers $10,000, from which he made Mrs. Humbert the $5,000 loan specified in the contract.Owing to illness, Mrs. Humbert was not present when the transaction was closed, but was represented by her attorney, Mr. Howell.She had, however, executed and forwarded to him an unrestricted judgment bond and mortgage on the hotel property, payable to Ada E. Meyers and N. Peter Meyers, to secure the $5,000 loan, which were delivered to their father for them by Mr. Howell.The mortgage was recorded at once in Somerset County and presently judgment was entered in the same county on the bond.Thereupon a transcript of the judgment was entered in Fayette County, where Mrs. Humbert owned real estate.Later she presented a petition to the court in Somerset County, asking that the judgment be opened and she let in to a defense.Among the reasons presented for such relief was an alleged contemporaneous parol agreement made between Howell, acting for her, and William P. Meyers, acting for appellees, to the effect that any judgment entered on the bond should be restricted to the hotel property.An answer was filed and testimony taken; upon consideration of which the lower court made an order as follows: "Now, June 5, 1920, the rule to open the judgment is made absolute and it is ordered that the issue thereunder be confined to the question of the alleged promise of William P. Meyers, the plaintiffs' agent, that the lien of the judgment should be restricted to the real estate owned by the defendant[Mrs. Humbert] at Garrett, in Somerset County, Pennsylvania."In the issue so ordered Mrs. Humbert was made plaintiff and Ada E. Meyers and N. Peter Meyersdefendants.The trial thereof was restricted by the court to two questions, which with the jury's answers were:

"(1st).Was there an agreement between George Howell, attorney and agent for Sarah J. Humbert, and William P. Meyers, father and agent of Ada E. Meyers and N. Peter Meyers, that the lien of any judgment entered on the mortgage bond should be confined to the real estate at Garrett, Somerset County, Pennsylvania?Answer: Yes.

"(2d).If there was such an agreement, did it go further and provide that no execution should be issued upon such judgment against any property, real or personal, of the said Sarah J. Humbert, except the said real estate at Garrett, Somerset County, Pennsylvania?Answer: Yes."Thereafter the trial court entered judgment n.o.v. for the defendants in the issue; from which the plaintiff therein brought this appeal.

The judgment cannot be sustained.Howell's testimony is that when he saw the bond was unrestricted and contained a judgment clause he declined to deliver it until the agent William P. Meyers, orally agreed that the lien of, or execution issued upon, any judgment entered on the bond should be restricted to the hotel property at Garrett, and on the faith of such agreement witness delivered the bond.This testimony is corroborated by that of Mrs. Humbert's son and daughter, who were present in Mr. Howell's office, but is contradicted by that of William P. Meyers.That a contemporaneous parol agreement, on the faith of which a written instrument was executed (here delivered), may be shown is undoubted, but the former must be established by clear, precise and indubitable evidence: Dixon v. Minogue,276 Pa. 562;Organ Co. v. McManigal, 8 Pa. Superior Ct. 632;see alsoGandy v. Weckerly,220 Pa. 285;Walker v. France,112 Pa. 203.Here, the evidence, if true, and that was for the jury, was of such character.In the case of Shields v. Hitchman,251 Pa. 455, relied upon by appellees, the alleged parol agreement was made several days before and not contemporaneous with the execution and delivery of the papers.Nearer in point is Schweyer v. Walbert,190 Pa. 334, to the effect that general liability upon a bond accompanying a mortgage, given for purchase money of real estate, may be limited by a...