Ritter v. Thomasky

• Decision Date: 12 December 1918
• Docket Number: 4-1918
• Citation: 70 Pa.Super. 615
• Parties: Ritter, Appellant, v. Thomasky
• Court: Pennsylvania Superior Court

70 Pa.Super. 615

Ritter, Appellant, v. Thomasky

No. 4-1918

Superior Court of Pennsylvania

December 12, 1918

Argued October 7, 1918 [Syllabus Matter] [Syllabus Matter]

Appeal by plaintiff, from judgment of C.P. Columbia Co.-1915, No 24, on verdict for defendant in case of James R. Ritter, assignee of L. C. Mensch, who was assignee of C.B. Noetling, v. Mary Ann Thomasky, Executrix of John Thomasky, deceased.

Scire facias sur mortgage. Before Evans, P. J.

The court charged in part as follows:

[If you find as a fact that for the consideration of three thousand dollars named in the deed C.B. Noetling was not only to convey the farm, but in addition thereto was to make certain repairs to the buildings, viz: put new roofs on the barn and house and deliver certain personal property to Thomasky on the farm mentioned in the bill of sale, and that he failed to do either, that is, make the repairs or deliver the personal property, and that Thomasky because of such failure was damaged, such damages would be set off against the amount claimed on the mortgage.] Did Noetling, the mortgagee, agree to make the repairs to the buildings and deliver the personal property on the farm as claimed by the defendant?

Mr. Nowakoski and Mrs. Thomasky both testified that he did, and that he failed to do either. Their evidence, gentlemen, is not contradicted.

Frank Pursell testified that the team of horses agreed to be delivered on the farm, were worth four hundred and fifty dollars. If we recollect his evidence correctly, or if we understand him correctly, he bought the team for that price. Take your recollection for that fact, however, not the Court's.

Daniel Bankus testified that he knew the horses, the team of farm horses, and they were worth from four hundred to five hundred dollars.

W. A. Dreisbach, a witness called on the part of the defendant, a carpenter residing at Mountain Grove, testified that to make the repairs to the buildings contemplated by the agreement, would cost five hundred and eighty dollars.

[Therefore, if you find as a fact, that Thomasky sustained damages to an amount in excess of the amount claimed on the mortgage by Ritter because of Noetling's failure to make the repairs to the buildings and to deliver the personal property mentioned in the bill of sale, such damages would be a set-off against the amount claimed, and your verdict should be for the defendant, providing such damages exceed the amount claimed on the mortgage.]

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were above instructions quoting them.

Fred Ikeler, with him Christian A. Small and John A. Beard, for appellant. -- The assignee does not take subject to equities or set-offs that arise from or grow out of an agreement or contract that is merely collateral to the mortgage contract: McMasters v. Wilhelm, 85 Pa. 218; Scott v. Hough, 151 Pa. 630; Davis v. Barr, 9 S. & R. 136.

Thomasky must suffer this loss, because his confidence imposed in Noetling made possible the fraud: Jeffers v. Gill, 91 Pa. 290; Penna. R. R. Co.'s App., 86 Pa. 80; Stevenson v. Henning, 34 Pa.Super. 184.

The alleged agreement was only a promise to be performed in the future: Grove v. Hodges, 55 Pa. 504; Lowry Nat. Bank v. Hazard, 223 Pa. 520; Murphey v. Greybill, 34 Pa.Super. 346; Philadelphia & Gulf Steamship Co. v. Pechin, 61 Pa.Super. 401; Guarantee Co. v. Mayer, 141 Pa. 511.

Plaintiff was guilty of laches: Wetherill's App., 3 Grant 281.

W. H. Rhawn, with him G. W. Moon, for appellee. -- The true consideration of an instrument may always be shown: Mackey v. Brownfeld, 13 S. & R. 239; Peterson v. Willing, 3 Dallas 506; Frants v. Brown, 17 S. & R. 287.

The rule that where one of two innocent parties must suffer, he should bear the loss whose act or neglect caused the suffering, has no application to the case at bar: Robb v. Pa. Co. for Ins. on Lives, Etc., 3 Pa.Super. 254; Sellers v. Benner, 94 Pa. 207.

Since James R. Ritter failed to make inquiry of the executrix of the mortgagor, there must be imputed to him, at least, constructive knowledge of the mortgagee's failure to keep and perform the contract he made with the mortgagor: Sellers v. Benner, 94 Pa. 207; Earnest v. Hoskins, 100 Pa. 551. Faull v. Tinsman, 36 Pa. 108; Penna. R. R. Co.'s App., 86 Pa. 80; Stevenson v. Henning, 34 Pa.Super. 184.

There was no laches on the part of the mortgagor and his executrix in setting up the defense of failure of consideration and set-off: Earnest v. Hoskins, 100 Pa. 551; Evans' App., 81 Pa. 278.

Before Orlady, P. J., Porter, Henderson, Head, Kephart, Trexler and Williams, JJ.

OPINION

KEPHART, J.

It is a general rule of law that the assignee of a mortgage takes it subject to all the equities and set-offs existing between the original parties, and it is customary in such assignments to secure from the mortgagor a certificate of no defense. To bring a case within an exception to this general rule, viz the assignee does not take it subject to equities or set-offs that arise from or grow out of an agreement or contract that is merely collateral to the mortgage, it must be made to appear that such agreement is in addition to the mortgage contract, and in no wise a part of the undertaking expressed in the mortgage. If it appears that this agreement forms a part of the consideration that was the foundation of the mortgage, it would...