Shepherd v. Busch

• Decision Date: 10 April 1893
• Docket Number: 216
• Parties: Shepherd v. Busch, Appellant
• Court: Pennsylvania Supreme Court

26 A. 363

154 Pa. 149

Shepherd v. Busch, Appellant

No. 216

Supreme Court of Pennsylvania

April 10, 1893

Argued March 30, 1893

Appeal, No. 216, Jan. T., 1893, by defendant, Clarence M Busch, from judgment of C.P. No. 1, Phila. Co., Dec. T 1891, No. 204, on verdict for plaintiff.

Assumpsit on building contract.

At the trial before BREGY, J., it appeared that defendant owed plaintiff $1,405 balance on building contract. On Oct. 3, 1891, plaintiff received from defendant two promissory notes for $500 each of the T.C. Knauff Co., and $425 in cash, and gave a receipt for $1,405, the notes being taken at a discount of two per cent from their face. The receipt did not show that the notes were taken as an absolute payment of so much of the debt, but merely acknowledged the amount of $1,405 received "on account of contract for plastering."

When Harry Weekey, defendant's agent, was on the stand, he was asked by plaintiff on cross-examination: "Q. Didn't you give the same kind of notes to other people on the same operation? Objected to. Mr. Chase: I propose to show that they gave them to nearly all the material-men on the operation. Objected to. Objection overruled and exception. Q. How many other people on the operation did you give the same kind of notes to? A. Well, in one or two cases I was asked and I gave them." [4]

The court charged in part as follows:

"Now, consider all the circumstances in this case, the receipt and the papers, and all that was said. Did Mr. Shepherd receive these notes in payment of his debt? If he did, that is the end of it; your verdict should be for the defendant. [But if he did not receive them in payment of his debt -- in payment of what Mr. Busch owed him -- or, rather, in payment of $1,000 of the debt -- why, then, your verdict should be for the plaintiff for the amount of his indebtedness.]

"There is a receipt here. That you are to consider. If you believe that that receipt shows that Mr. Shepherd intended to receive those in payment of his debt, why, you can take it as evidence of that; but, on the other hand, the fact that he gave a receipt in the words that he did does not bar him from explaining the receipt or of satisfying you that it did not mean the words that were therein stated. In other words, the receipt is not a bar to his showing you that the facts were different from what the face of the receipt might seem to indicate.

"As I have said again and again, and as counsel have said to you in the case, [the only thing in it is, was it given as payment or as collateral security? That is for you to decide.]

"The only thing in it is, that if you believe he was induced to receive them in payment under a false story about their value -- if the man told him they were good, and that if the bank did not take them he would take them back -- why, then, of course, the man had a right to go back if the bank would not take them and ask to have his money paid to him. But that brings us right back to where we were before -- the original proposition; [were they taken as a payment to wipe out that much of the debt which Mr. Busch owed to Mr. Shepherd, or were they only taken as collateral security?]" [2]

Verdict and judgment for plaintiff for $1,069. Defendant appealed.

Errors assigned were, (1-2) instructions, (3) in submitting to the jury to find that the notes in question were taken as collateral security only; and (4) ruling on evidence; quoting instructions, bill of exception and evidence.

Judgment affirmed.

George L. Crawford, Henry C. Loughlin with him, for appellant.

Charles A. Chase, Charles C. Lister with him, for appellee, cited: League v. Waring, 85 Pa. 244; Holmes v. Briggs, 131 Pa. 233; Bell v. Bell, 12 Pa. 235; McElheny v. Bridge Co., 153 Pa. 108.

Before STERRETT, C.J., GREEN, McCOLLUM, MITCHELL and DEAN, JJ.

OPINION

MR. GREEN,...