Miller v. Wilson

• Decision Date: 18 December 1854
• Citation: 24 Pa. 114
• Parties: Miller <I>versus</I> Wilson.
• Court: Pennsylvania Supreme Court

24 Pa. 114

Miller versus Wilson.

Supreme Court of Pennsylvania.

December 18, 1854.

ERROR to the Common Pleas of Washington county.

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Marsh, Gow, and Murdoch, were for plaintiff in error.—That the action abated, reference was made to 6 Wheaton 260; 13 Ser. & R. 184-5. 2. The action was either in tort or in contract. If in tort, it abated. If in contract, only compensatory damages could be recovered; and as the Worrell judgments took all the money but about $400, the balance was all that was recoverable. 4. The surrender of the plaintiff's judgments was not the consideration of the mortgage; but the conditions of Carson's bond were the consideration for the surrender of the judgments, and the mortgage was collateral and could only be resorted to on Carson's failure to perform. In actions of contract, nothing can be recovered but such damages as are the immediate and legal consequence of the breach of contract: 8 East, Vicars v. Wilcocks.

As to the 3d point submitted: If the mortgage had been recorded, when would the plaintiff have been in a position to sell the life estate under a proceeding upon the mortgage? and it was uncertain whether the tenant for life would live till such a sale were made. It was further alleged that Carson, and not the plaintiff, employed Miller; and that he could not have recovered from her for his attention to the matter.

McKennan, Acheson, and Wilson, were for defendant in error. —Whenever the common law gives a right or prohibits an injury, it also gives a remedy by action: Blackstone's Com.; 6 Mass. 254. The compensation should be equivalent to the injury: 4 Dallas 206. The gravamen of the action in this case was the breach of contract, and not the damages that have or may result therefrom. The plaintiff could have but one action in which she could recover all the damages she sustained by reason of the breach of contract, and the suit must have been brought within six months from the time her right of action accrued: 7 Barr 27, Derrickson v. Cady; 2 Bing. 229, Richardson v. Mellish, 9 Eng. C. L. 391; 5 Barn. & Cress. 259, Howell v. Young. The plaintiff in this case was the owner of three judgments, which under the advice of Miller she released, and received the mortgage which was to have been entered so as to be a lien on Carson's real estate, which, it was said, was ample for its security. Afterwards Miller became an endorser for Carson, and when he was about to fail, Miller neglected to have the mortgage recorded. The Worrell judgments were the first liens. If the mortgage had been recorded, it would have been the next lien, and the bank judgments next in order; and a sale under them would have discharged the mortgage.

As to the life estate: The mortgage, if recorded, would have bound the life estate in the one-half of the land, as well as the fee in the other half. The fee has been sold, and the life estate is unavailable to the plaintiff by reason of the interposition of the bank judgments. The result to her is the same as if the life estate had been sold.

Though the consequences of the breach of contract have not been fully developed, still they may enter into the estimate of damages. Suppose Carson supports her for six years and then dies. There was no evidence that he had paid her anything since his insolvency; but if he were willing to labour for her, it was not for this that she released her patrimony. For all the consequences of the breach of contract, direct and ascertained, as well as probable, the defendant was answerable: 1 Ld. Raym. 339, Fetter v. Beal; Id. 692, case of recovery of £11 for a battery, and afterwards, part of the plaintiff's skull coming out, a second action was brought: Held, that the battery was the foundation of the action, and the damage which probably might ensue should have been given in evidence in the first action. Also cited Chitty on Con. 768; 18 Jurist 536, Rolin v. Stewart, case of dishonouring a check. The Court, in the present case, instructed the jury that they were not to allow any interest as damages, but that the plaintiff could recover only for the real loss or actual damage, and not for a merely probable or possible loss.

The continuance of the case was within the discretion of the Court, and it is not to be implied that any cause of challenge existed. The defendant was not required to supply from bystanders the jurors whom he might have challenged.

The opinion of the Court was delivered, December 18, by BLACK, C. J.

Margery Wilson, the plaintiff below, had a claim against her two sisters, secured by judgments which were or had been a lien on lands owned by them. Adam Carson married one of the sisters, bought the other's share of the land, and agreed to become responsible to the plaintiff for her debt. She consented to accept in satisfaction thereof his bond to provide for and maintain her during life, or to pay her, if she preferred it, one hundred and fifty dollars per annum; and to make the bond secure, she was to have a mortgage on the land. The defendant, Miller, was employed and paid to adjust the business agreeably to this arrangement; and the shape it took was assumed under his direction. He drew the papers, consisting of the bond, the mortgage, and a power of attorney to himself to enter satisfaction on the judgments. He took the power of attorney and executed it. He also took the mortgage, promising to have it recorded, and assuring the plaintiff that she would thus be made entirely safe. He did not record it, but withheld it until the property was encumbered with other liens (in some of which he himself had an interest) to an amount greater than its value. Carson became hopelessly insolvent, and, excepting his worthless bond, the plaintiff has no security for her claim. The defendant's counsel think that he ought not to pay for the great injury which his neglect has occasioned. The Court of Common Pleas and the jury thought otherwise, and we are of the same mind.

The argument is, that the plaintiff has not as yet suffered any actual loss from the defendant's violation of duty; and that she can recover from Miller only in case Carson makes default; because, the mortgage being but a security for the bond, there is nothing due on the former until the condition of the latter is broken. But we hold it for clear law, that Miller did not merely substitute his personal responsibility in place of the mortgage; that he did not become Carson's surety in the bond; but that he subjected himself to an immediate action, in which the plaintiff may recover compensation for all she has lost, and all she is likely to lose, through his misconduct.

On a contract to pay money at stipulated periods, there may be as many suits as there are instalments; for every failure to pay is a fresh breach of the contract; and there can be no recovery except for what is due at the time of suit brought. But on a tort, or on a...