Sartwell v. Wilcox
| Decision Date | 20 December 1852 |
| Parties | Sartwell <I>versus</I> Wilcox. |
| Court | Pennsylvania Supreme Court |
A. B. McCalmont, with whom was Curtis, for plaintiff in error. —As to the first point was cited 1 W. & Ser. 195; 8 Id. 76; 8 Watts 385; 6 W. & Ser. 61. It was alleged that it did not appear to have been the fault of Sartwell that Wilcox failed to make his payments, and that when the original contract was forfeited, Sartwell had a legal remedy against Wilcox for the amount he advanced. But further, in 1839, Wilcox & Struthers entered into a new contract with Gaskill, and on it obtained a credit for the $1000 advanced by Sartwell. It was contended that no question as to fraud should have been left to the jury, and much less without the common caution that fraud must be clearly proved.
It was further contended that though the agreement contained a promise to pay out of a particular fund, it recognised a previous indebtedness. In this the case was distinguished from the case of Chambers v. Jaynes, 4 Barr 39, and was assimilated to the case of Montgomery v. St. Stephen's Church, 4 W. & Ser. 542.
But if the promise was to pay only out of a certain fund, and not otherwise, it was still error to charge that the fund was previously pledged for costs and expenses, and unless funds came to the hands of Wilcox beyond the amount of the purchase-money to be paid on the lands and the charge of agencies and expenses, that he was not liable. Wilcox promised to pay out of the payments to be made by the Society, and it was not a defence that he had made nothing by the transaction.
S. P. Johnson, for defendant in error.—It was suggested that the agreement was signed by Wilcox under a misapprehension that the contract on account of the German Society might be interfered with or embarrassed. On questions of fraud great latitude of evidence and inference is allowable: 10 Watts 107, Myers v. Hart. The original contract for the land was forfeited. The agreement involved in this suit was based on a misapprehension of the facts, and Wilcox was under a mistake as to any legal obligation to refund to Sartwell; and that he might be relieved 1 Story's Eq. 121 was referred to; also 6 Barr 417.
The first and second points were answered affirmatively, and what is said as to fraud is stated hypothetically, which is not assignable as error: 2 Pa. L. J. 317; 9 Watts 336.
As to the construction of the contract, Chambers v. Jaynes, 4 Barr 39, was referred to. It was alleged that the agreement of Wilcox did not contain a promise to pay generally; that Wilcox did not owe Sartwell anything in the matter, either in law or equity; and if he did, the latter yielded the personal responsibility for an interest in the fund, and if such an interest was not recognised by those having prior claims upon the fund, or had to be postponed to paramount claims, he is without remedy. The only previous claim which Sartwell alleged he had was against Wilcox & Struthers jointly; which, it was contended, could not be used to sustain this suit.
The opinion of the Court was delivered, Dec. 20, by WOODWARD, J.
This action was founded on the agreement of 15th March, 1842. It might have been a legitimate ground of defence...
To continue reading
Request your trial