Musser v. Stauffer

• Citation: 35 A. 709,178 Pa. 99
• Decision Date: 05 October 1896
• Docket Number: 383
• Parties: Henry C. Musser, Appellant, v. Samuel D. Stauffer
• Court: Pennsylvania Supreme Court

35 A. 709

178 Pa. 99

Henry C. Musser, Appellant, v. Samuel D. Stauffer

No. 383

Supreme Court of Pennsylvania

October 5, 1896

Argued May 22, 1896

Appeal, No. 383, Jan. T., 1896, by plaintiff, from judgment of C.P. Lancaster Co., June T., 1895, No. 49, discharging rule for judgment for want of a sufficient affidavit of defense. Affirmed.

Assumpsit upon promissory notes. Before BRUBAKER, J.

The plaintiff's statement shows that on the 11th day of November, 1890, he sold the defendant at Roanoke, Va., eight lots of ground in the city of Roanoke in the state of Virginia, in consideration of which the defendant assumed and agreed to pay as part of the purchase money twelve notes of $83.33 and four of $83.34, which notes had been made by the plaintiff and were payable to and held by the Melrose Land Company of Roanoke, Va., amounting in the aggregate to $1,333.32, and in further consideration for the sale of said lots, the defendant gave the plaintiff sixteen promissory notes, dated said 11th day of November, 1890, for $33.33 each, eight of which were payable in one year from date and eight in two years from date; that defendant having neglected and refused to pay eleven of the notes assumed by him plaintiff was compelled to pay them; and plaintiff claimed for the amount of said eleven notes which he had been compelled to pay to the Melrose Land Company and for the sixteen notes which defendant had given him. The notes were executed in Virginia, and were to be paid in Virginia.

Defendant filed an affidavit of defense, and also a supplemental affidavit of defense. The latter is as follows:

1. At the time of the execution of the notes upon which this suit is brought and which are set forth in the plaintiff's statement, Samuel D. Stauffer was the owner and holder of one-fourth of the capital stock of the Monitor Steam Generator Manufacturing Company of Lancaster city, and had from it authority to enter into contracts with the Monitor Steam Generator Manufacturing Company of Roanoke, and with Henry C. Musser, its secretary, the plaintiff in this action.

2. At or about the time of the execution of the said notes and as part of the consideration of the same, the plaintiff, Henry C. Musser, made an oral agreement with Samuel D. Stauffer that his company, the said Monitor Steam Generator Manufacturing Company of Roanoke, would pay to the Monitor Steam Generator Manufacturing Company of Lancaster, eighty thousand dollars ($80,000) for the transfer and assignment of the territorial rights under patent No. 382,863, issued by the United States, which promise made to the said Monitor Steam Generator Manufacturing Company of Lancaster, was of value to defendant in that he owned one-fourth of the stock of the said company and would therefore be entitled to one-fourth of the profits arising from the sale of said patent, and it was part of the consideration of the notes upon which this suit is brought that said money should be paid to the said Monitor Steam Generator Manufacturing Company, of Lancaster, Pennsylvania. Said agreement between said two companies was dated on the second day of October 1890. Its terms and conditions are set forth in the record book of the Monitor Steam Generator Manufacturing Company, of Roanoke, of which plaintiff is secretary and to which he has access, and of which defendant has no copy but will be able to produce by subpoena on the trial of this cause. But the defendant avers that when he executed said notes the said Henry C. Musser had knowledge of said agreement and was interested in the same as a stockholder of the said company of Roanoke, and expressly made said agreement and the advantages resulting to defendant from the execution thereof a part of the consideration of said notes, without which consideration said notes would not have been given, and it was expressly agreed by and on behalf of plaintiff that if said consideration failed, said notes need not be paid, and this on the trial of this cause defendant expects to be able to prove by another witness than himself and by corroborating circumstances the exact nature of which he is advised he need not at this stage of the case disclose.

3. Defendant notified the Monitor Steam Generator Manufacturing Company, of Lancaster, of the alleged agreement; the said company had knowledge of, ratified and adopted it, and in making partial payment to the said company of Lancaster, the said company of Roanoke, through its secretary, the plaintiff in this case, deducted a portion of the moneys due from defendant to plaintiff on the contract out of which this suit arose and in which the notes on which this suit is founded were given.

4. The defendant had power and authority from the Monitor Steam Generator Manufacturing Company, of Lancaster, to make an arrangement by which there might be deducted from the moneys payable to it the amount of said notes.

5. The defendant was not bound to demand or to have demand made upon plaintiff or his company of Roanoke for the payment of said forty-five thousand dollars ($45,000) to the Monitor Steam Generator Manufacturing Company, of Lancaster, but inasmuch as the payment of said moneys was part of the consideration of said notes, the plaintiff and his company of Roanoke were bound to comply with all their undertakings and agreements before they had a right to collect said notes, and the consideration of said notes having failed, defendant is not bound to pay them.

6. The defendant alleges that the Monitor Steam Generator Manufacturing Company, of Lancaster, was owner and had the right and power to sell and convey to the said company, of Roanoke, all the patents and property for which it had mad agreements.

7. Said rights and patents were of great value, to wit, of the whole amount which plaintiff's company had agreed to pay for them.

8. The defendant alleges that he expects to be able to prove upon the trial of the said cause, by his own evidence, by the testimony of another witness whose name he is advised he is not bound to disclose, and by corroborating circumstances the exact nature of which he is advised he is not bound to disclose, that a part of the consideration of the notes on which this suit was brought was the promise and undertaking of plaintiff to see that said forty-five thousand dollars ($45,000) was paid by the company of which he, plaintiff, was a large stockholder and was an officer, to the company of which defendant was a large stockholder, which consideration having failed, said notes were not to be paid by, and cannot in law be collected from, the defendant.

9. Defendant alleges and is advised that he was not bound to disaffirm the contract set forth in plaintiff's statement, but that before plaintiff could collect the moneys of said obligations, he was bound to furnish the consideration upon which they were given, by reason of the failure of which he is further advised there can be no recovery in this case.

The court discharged a rule for judgment for want of a sufficient affidavit of defense.

Error assigned was above order.

Judgment affirmed.

E. D. North, with him L. N. Spencer, for appellant. -- The written contracts set forth in plaintiff's statement, and upon which this action was brought, were made, and were to be performed in Virginia, and the land is situated in Virginia, and the law of that state must govern in determining their validity, obligation and construction; therefore, if under the laws of Virginia, the allegations contained in the defendant's affidavit and supplemental affidavit of defense would be no defense to a suit brought in that state, they can be no defense in this suit: Tenant v. Tenant, 110 Pa. 484; Baum v. Birchall, 150 Pa. 164; Story on Conflict of Laws, 424. The law of Virginia will not admit parol evidence to vary or contradict the terms of these contracts: Crawford v. Jarrett, 2 Leigh. (Va.) 684; Watson v. Hurt, 6 Grattan, 633; Leas v. Eidson, 9 Grattan, 277; Carter v. McArtor, 28 Grattan, 356; Barnett v. Barnett, 83 Va. 504; Towner v. Lucas, 13 Grattan, 705; Woodward, Baldwin & Co. v. Foster, 18 Grattan, 200; Shenandoah Valley R.R. v. Dunlop, 86 Va. 346; Sangston v. Gordon & Riely, 22 Grattan, 755; Colhoun & Cowan v. Wilson, 27 Grattan, 639; Johnson v. Mann, 77 Va. 265; Miller v. Fletcher, 27 Grattan, 403; Redd v. Com., 85 Va. 648; Bonsack v. Woodrum, 88 Va. 512; Shirley v. Rice, 79 Va. 442; Bast v. Bank, 101 U.S. 93.

Decisions of the courts of one state upon the commercial or any other branch of the common law prevailing therein, are as binding upon the courts of another state as are decisions based upon statutes: Forepaugh, v. D.L. & W.R.R., 128 Pa. 217.

The defendant does not allege that anything was omitted from the written contracts by fraud, accident, or mistake, or that there was any fraud, accident, or mistake in the making of the contracts; therefore, if anything was omitted therefrom it was purposely omitted: Irvin v. Irvin, 142 Pa. 286; Anspach v. Bast, 52 Pa. 356; Hacker v. The Nat. Oil Refining Co., 73 Pa. 93.

W. U Hensel, with him J. Hay Brown, for appellee. -- Parol evidence may be given to prove the existence of any separate parol agreement constituting a condition precedent to the attaching of any obligation under a written instrument; or to show a consideration different from or additional to that expressed: 17 Am. & Eng. Ency. of Law, 436; Shue v. Fuheman, 1 York Leg. Reg. 62; Caley v. Phila. & Chester County R.R., 2 W.N.C. 313; Flood v. Park, 2 W.N.C. 569; Lippincott v. Whitman, 3 W.N.C. 313; Christ v. Diffenbach, 1 S. & R. 464; Iddings v. Iddings, 7 S. & R. 111; Miller v. Henderson, 10 S. & R. 290; Parke v. Chadwick, 8 W. & S. 96; Clark v. Partridge, 2 Pa. 13; Renshaw v. Gans, 7 Pa. 117; Rearich v. Swinehart, 11 Pa. 233; ...