Argued
April 17, 1894
Appeal, No. 185, July T., 1893, by defendants, from judgment
of C.P. Centre Co., Jan. T., 1891, No. 17, on verdict for
plaintiff. Affirmed.
Assumpsit
on agreement in writing. [See collateral issue in Mingle
v. Rossmann, 161 Pa. 366.] Before FURST, P.J.
Plaintiff's
statement was as follows:
"The
demand of the plaintiff in the above stated action is founded
upon a certain article of agreement between Henry Krumrine
late of Gregg township, deceased, and the defendants, dated
March 20, 1888, under and by virtue of which, the said
plaintiff agreed to sell to the said defendants a certain
stock of merchandise owned by him, together with all the
fixtures in the storeroom, and also all book accounts, notes
and assets of every description in connection with the store
and business bought by the plaintiff from the Pennsvalley
Banking Co., and formerly owned by I. J. Grenoble. In
consideration of which the said defendants agreed to assume
and pay a certain judgment against Henry Krumrine and in
favor of the Pennsvalley Banking Co., or so much as remained
unpaid, and also agreed to pay any and all indebtedness
belonging to the store or connected therewith, contracted by
said Henry Krumrine since he took charge of said store and
came into possession thereof, and also the said defendants
agreed to save and keep the said Henry Krumrine harmless and
indemnified against the payment of the said indebtedness; and
the said defendants, further to carry out the terms of said
agreement, executed a bond of indemnity in the penal sum of
three thousand ($3,000) dollars, dated the 22d day of March
1888, to indemnify 'the said Henry Krumrine, his
executors, administrators and heirs, of and from all actions
suits, costs, demands, charges, judgments, executions and
demands whatsoever which shall at any time hereafter come
against the said Henry Krumrine, his executors,
administrators and heirs, by reason of any bill, bonds,
specialties, promise or contract for or concerning the said
mercantile business,' copies of which said agreement and
bond are hereto annexed and asked to be considered a part of
this statement.
"The
plaintiff further avers that, after making the said
agreement, the said Henry Krumrine became liable and was
compelled to pay for said defendants three certain judgments
obtained against the said Henry Krumrine in the Court of
Common Pleas of Centre county, in favor of Weimer, Wright &
Watkins, one thereof to No. 144 of Jan. Term, 1889, amounting
to $173.70 with interest from the 1st of January, 1889, and
costs, amounting to $32.21; another thereof to No. 145 Jan.
Term, 1889, for $175.12 with interest from Dec. 29, 1889, and
costs amounting to $16.90; and the other thereof to No. 174
of Jan. Term, 1889, for $172.56 with interest from 22d of
January, 1889, and costs amounting to $14.00; that all of
said judgments were obtained against the said Henry Krumrine
and he compelled to pay the same, in violation of the
covenants and obligations contained in said agreement of
March 20, 1888, and said bond of indemnity of March 22, 1888.
Plaintiff further avers that said Henry Krumrine has since
died and letters testamentary have been duly issued upon his
estate to the plaintiff above named and that the amount of
said Weimer, Wright & Watkins judgments have not been in any
way repaid, either to said Henry Krumrine, or to the
plaintiff, since his decease. Plaintiff further complains
that the said Grenoble Store Co. is also indebted to the
plaintiff in the further sum of thirteen hundred and fifty
($1,350) dollars, with interest from the 8th day of May,
1888, on account of the following note, now in the hands of
said plaintiff, and which came into his hands as part of the
assets of said estate of Henry Krumrine deceased, namely:
"'$1,350.00.
SPRINGS
MILLS, Pa., May 8, 1888.
"'One
day after date, we promise to pay to the order of H. Krumrine
thirteen hundred and fifty dollars, with interest from date,
without defalcation, value received.
(Signed)
"'GRENOBLE STORE CO.'
"And
thereon we certify that the amount of said three judgments,
together with the amount of said note, remains due and unpaid
to the said plaintiff, as per annexed statement."
The
"annexed statement" contained above mentioned
items.
The
agreement annexed to plaintiff's statement was as
follows:
"Memoranda
of agreement made and concluded this 20th day of March, A.D.,
1888, by and between Henry Krumrine, of Gregg township,
Centre county, Pennsylvania, of the first part, and P. E.
Grenoble, Eve Weaver, John Rossman and Daniel Bartges, of the
same place, of the other part, witnesseth:
"That,
for and in consideration of the premises hereinafter
mentioned, the said party of the first part hereby agrees to
sell and transfer and by these presents does sell and
transfer unto the said parties of the second part all his
stock of merchandise, consisting of dry goods, notions,
groceries, queensware, hardware, glassware, clothing, hats,
caps, boots and shoes, drugs, tinware and everything
contained in the store room formerly occupied by I. J.
Grenoble, together with all fixtures appurtenant; also all
the books, accounts, notes and evidences of indebtedness of
the said Henry Krumrine arising out of the said business
contracted since the said party of the first part purchased
from the Pennsvalley Banking Company; also the lease for the
rooms now occupied by the said party of the first part and
the dwelling house and buildings connected therewith and all
and every the property purchased by said Krumrine from the
Pennsvalley Banking Company and formerly owned by the said
I.J. Grenoble.
"For
and in consideration of which, the said parties of the second
part agree to assume and pay a certain judgment against Henry
Krumrine and in favor of the Pennsvalley Banking Company, or
so much thereof as now remains unpaid, or less any amount
thereof that said Krumrine may be liable to pay himself; and
also agree to pay any and all indebtedness belonging to the
store or connected therewith contracted since said Henry
Krumrine took charge of said store, and save and keep him
harmless from the payment thereof. Possession to be given at
once and the rent from now on to be paid by the said parties
of the second part," with signatures and seals of
parties, and transfer by Krumrine of an insurance of $8,000
on the goods.
The
bond was as follows:
"Know
all men by these presents, That we, P.E. Grenoble, Eve
Weaver, John Rossman and Daniel Bartges, are held and firmly
bound unto Henry Krumrine, of Spring Mills, Centre county,
Pennsylvania, in the sum of three thousand ($3,000) dollars,
lawful money of the United States of America, to be paid to
the said Henry Krumrine, his certain attorneys, executors,
administrators or assigns. To which payment well and truly to
be made, we do bind ourselves, our executors, administrators
and heirs, jointly and severally by these presents. Sealed
with our seals, dated the 22d day of March, A.D., one
thousand eight hundred and eighty-eight.
"Whereas,
the mercantile business which was heretofore conducted by the
said Henry Krumrine has this day been sold to the said P. E.
Grenoble, Eve Weaver, John Rossman and Daniel Bartges, and
all the assets in the mercantile business, consisting of book
accounts and notes taken for book account of the said Henry
Krumrine, have been this day assigned to the said P. E.
Grenoble, Eve Weaver, John Rossman and Daniel Bartges, who,
in consideration whereof, engaged to pay the debts of the
said Henry Krumrine which were contracted for goods, etc.,
for the store and for goods ordered and not yet received,
provided said goods so ordered will be taken into the store,
and to save harmless said Henry Krumrine from all claims
against him from said business.
"Now
the condition of this obligation is such that, if the said P.
E. Grenoble, Eve Weaver, John Rossman and Daniel Bartges
shall and will from time to time and at all times hereafter
well and sufficiently save, defend and keep harmless and
indemnified the said Henry Krumrine, his executors,
administrators and heirs, of and from all actions, suits,
costs, demands, charges, judgments, executions and demands
whatsoever which shall at any time hereafter come against the
said Henry Krumrine, his executors, administrators and heirs,
by reason of any bills, bonds, specialties, promise or
contract for or concerning the said mercantile business, then
this obligation to be null and void; otherwise to be in full
force and effect."
Plaintiff
called E. C. Krumrine and other witnesses to prove his case,
and rested, and defendant called their witnesses and rested.
Plaintiff then called E. C. Krumrine in rebuttal.
John
Rossman was then called on part of defendants. By Mr. Love:
We propose to contradict E. C. Krumrine. Objected to that it
was before the death of Henry Krumrine. By the Court: You can
prove nothing prior to the death of Henry Krumrine. [1]
After
the trial an exception was allowed to the above ruling nunc
pro tunc, with direction that the offer and exception be
placed after the evidence of E. C. Krumrine called in
rebuttal for plaintiff. The offer and exception were placed
in the paper-book before Krumrine's testimony in
rebuttal.
Appellants
in their paper-book state that "they offered to
contradict E. C. Krumrine by John Rossman, intending to deny
Grenoble's authority to make any arrangement with E. C
Krumrine for himself or his father, on behalf of appellants,
to show that no such settlement was ever contemplated by the
parties, and to show further that appella...
