Meason v. Kaine

• Decision Date: 03 January 1870
• Citation: 63 Pa. 335
• Parties: Meason <I>versus</I> Kaine.
• Court: Pennsylvania Supreme Court

63 Pa. 335

Meason versus Kaine.

Supreme Court of Pennsylvania.

November 17, 1869.

January 3, 1870.

November 17th 1869.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Fayette county: No. 32, to October and November Term 1869.

Campbell & Willson, for plaintiff in error.—The action should not have been for the purchase-money, but for damages for breach of contract: 2 Saunders' Pleadings & Ev., part 1, p. 532. This being a partnership, an action could not be maintained until a settlement of partnership accounts: Story on Partnership, §§ 219-221, 260. Under the Statute of Frauds the plaintiff cannot recover.

C. E. Boyle, for defendant in error.—The contract is not between vendor and vendee, but between vendees; there is therefore nothing on the ground of the Statute of Frauds to prevent the plaintiff's recovery: Stewart v. Brown, 2 S. & R. 461; Morey v. Herrick, 6 Harris 128; McKee v. Jones, 6 Barr 425; Rhine v. Robinson, 3 Casey 30; Beegle v. Wentz, 5 P. F. Smith 369; Black v. Moore, 1 Barr 344; Plumer v. Reed, 2 Wright 47; Reed v. Murray, 1 Jones 334; Finlay v. Stewart, 6 P. F. Smith 193. Cope had an interest in the question, but not in the case: 1 Greenl. Ev. § 389.

The opinion of the court was delivered, January 3d 1870, by SHARSWOOD, J.

Kaine and Cope made a written contract with Shoaf for the purchase of a farm. It was alleged by the plaintiff below that there was a verbal agreement between himself, Cope and Meason, the defendant, by which this farm was to be bought on joint account, in the names of himself and Cope, and the profits realized on a resale to be equally divided. Kaine having made certain payments on account to Shoaf, brought this suit against Meason to recover contribution.

His principal, and perhaps only witness to prove this verbal contract was Eli Cope, the other party to the written articles with Shoaf. When offered for this purpose, he was objected to as incompetent, but admitted by the court. This constitutes the 3d error assigned, which we will consider first in order. If the effect of a recovery by the plaintiff in this action would be to shift a part of his liability on the articles from himself to the defendant, he was clearly interested in the event of the trial. Primâ facie his liability to Kaine would be to contribute one-half. Should he be thereafter, sued by Kaine on such liability, the verdict and judgment in this case for the plaintiff would be evidence in his favor to prove that as between him and Kaine he was responsible only for one-third. Where a person is primâ facie liable on a contract he cannot be a witness to prove that he was acting as agent for the defendant, and thus throw the debt from his own shoulders on to another: Hickling v. Fitch, 1 Miles 208; Gilpin v. Howell, 5 Barr 52. In assumpsit for goods sold and delivered, there was evidence that the goods were sold to A., and it was proposed to call him as a witness to prove the case against the defendants, with whom it was alleged that he was in partnership, but it was held that he was incompetent on the ground that he was interested in procuring a verdict against the defendants, as in that case he would only be liable for a proportion of the debt: Ripley v. Thompson, 12 Moore 55. So in Purviance v. Dryden, 3 S. & R. 402, it was held on the same ground that a witness was incompetent who was offered by the plaintiff to prove that the witness had received the money for which the action was brought on account of a firm of which he and the defendant were partners. "He is primâ facie answerable for the whole," said Tilghman, C. J., "and if the plaintiff fails in this suit he must pay the whole. The effect of his evidence, then, is to take half of the burden off his own shoulders, and throw it on the defendants." To the same effect is Heckert v. Fegely, 6 W. & S. 139. We think there was error in the admission of the witness. This may not be very material, if he should live to another trial, as he will then undoubtedly be competent under the Act of April 15th 1869, Pamph. L. 30.

Assumpsit undoubtedly was the proper form of action. Assuming that there was a partnership between Kaine, Cope and Meason, it was limited to a single transaction, the purchase and sale of one particular farm or tract, and was not a general one in the purchase and sale of real estate. In such case assumpsit can be maintained: Brubaker v. Robinson, 3 Penna. R. 295; McFadden v. Erwin, 2 Whart. 37; Finlay v. Stewart, 6 P. F. Smith 183. This really seems to have been the only objection raised on the trial. The more difficult and embarrassing one, whether the alleged verbal contract between the parties can be enforced by a recovery against Meason of his proportionate share of the purchase-money, under the Statute of Frauds, was not brought to the notice of the learned judge. It fairly arises, however, under the exception to the charge of the court as set forth in the 1st assignment of error, and as the case goes back, it is our duty to consider it. The 2d assignment not being sec. reg. is to be treated as none.

No doubt this alleged verbal contract was a valid contract under our statute. An action might be maintained by the others against Meason to recover damages for his breach of it — his refusal to pay on demand his proportion of the purchase-money — in which action the measure of damages would be the difference between the price he had agreed to pay, and the present market value of one-third of the land: Bell v. Andrews, 4 Dall. 152; Ewing v. Tees, 1 Binn. 450; George v. Bartoner, 7 Watts 530; Ellet v. Paxson, 2 W. & S. 418; McDowell v. Oyer, 9 Harris 417. We ought also to lay out of view all the cases down to Murphy v. Hubert, 7 Barr 420, in which it was decided at last, though much I believe to the dissatisfaction of the profession, that a trust might be created in this state by a verbal agreement or admission of a grantee in an absolute deed, because the 7th section of the English statute, 29 Car. 2, c. 3, had not been re-enacted here. The 4th section of the Act of April 22d 1856, Pamph. L. 533, has now provided that all declarations or creations of trusts or confidences of land, and all grants and assignments thereof shall be manifested by writing signed by the party holding the title thereof. It would scarcely, I think, be pretended that if after the articles with Shoaf, Kaine and Cope had made a verbal agreement to convey an interest in their purchase to Meason it could have been specifically enforced either by or against him. It would be in the teeth of the Act of 1856. It...