Tonkin v. Baum

• Decision Date: 15 November 1886
• Docket Number: 191
• Citation: 114 Pa. 414,7 A. 185
• Parties: Tonkin v. Baum
• Court: Pennsylvania Supreme Court

7 A. 185

114 Pa. 414

Tonkin v. Baum

No. 191

Supreme Court of Pennsylvania

November 15, 1886

October 15, 1886

ERROR to the Court of Common Pleas of Cambria county: Of October Term 1886, No. 191.

This was an action in debt brought by John B. Baum, to recover from V. Tonkin the sum of $1,300 alleged to be a balance of purchase money due from him on an undivided interest in a tract of land sold by the plaintiff to the defendant and one R. C. McCurdy, who afterwards assigned his interest to Hipps & Lloyd by articles of agreement dated May 24th, 1873. By this agreement the plaintiff agreed to sell to the second parties therein a tract of land, containing between ninety and one hundred acres, more or less, situated in Susquehanna township, Cambria county. The consideration was $5,000, in three annual payments, two thousand dollars on or before July 15th, 1873, one thousand dollars on the 1st day of June 1874, and two thousand dollars on the 1st day of June, 1875 the parties of the second part agreeing not to cut more than two river rafts a year until the land was paid for, or security for the payment of the same was given.

On the 19th day of August, 1876, John B. Baum, the plaintiff, V Tonkin, the defendant, and Uriah Lloyd, one of the firm of Hipps & Lloyd, and a brother-in-law of the plaintiff, met at the house of the defendant and ascertained the amount due upon the articles of agreement before referred to. By the settlement then made it appears that Hipps & Lloyd, as assignees of R. C. McCurdy, owed $1,075, and that V. Tonkin owed $1,300. Prior to the date on which the last payment fell due, June 1st, 1875, John B. Baum, the plaintiff, had prepared a deed for the land described in the agreement which he had with him ready for delivery when the settlement was made on August 19th, 1876. It was then agreed between the parties that Hipps & Lloyd should give the plaintiff below their note, with V. Tonkin as security, for $1,075, the amount due from them, and that V. Tonkin, the defendant, a mortgage upon his undivided interest for the sum of $1,300 the amount he still owed on the contract. In pursuance of this arrangement the defendant delivered to the plaintiff a mortgage for his one undivided half interest in the land embraced in the articles of agreement, as security for the payment of one thousand three hundred dollars on the 15th day of July, 1877, with interest, which if duly made would render the conveyance void, and if default was made in the payment of the principal or interest therein mentioned, then John B. Baum was authorized to sell the premises above granted, or so much thereof as would be necessary to satisfy the amount due, with the costs and expenses allowed by law. The mortgage was dated August 19th, 1876, and on the same day the defendant signed the note for $1,075, with Hipps & Lloyd as their security. The plaintiff then delivered the deed. All the payments named in the agreement were then due. By its terms the parties could cut only two rafts of timber in one year. He thus retained the land and timber unless other security was given. The deed was then delivered to Mr. Tonkin, the defendant below, for the grantees therein. The purpose for which the deed was delivered to him was that he could sell the timber remaining upon the land when opportunity offered. This the defendant below soon after did to Merryman & Son, of Williamsport, who cut and removed part of the timber from the land. The note given by Hipps & Lloyd and the defendant was paid to the plaintiff at different times by the defendant with the money received from the sale of the lumber. The mortgage remained unpaid. On March 1st, 1880, the plaintiff had the mortgage recorded. On this a scire facias was issued and judgment obtained, a levari facias issued, the interest of the defendant below in the land sold to John B. Baum.

The plaintiff claimed in this action that on the 19th day of August, 1876, when the deed was delivered, the note of Hipps & Lloyd, and Tonkin, and the mortgage of the defendant, was received by the plaintiff in satisfaction of the purchase money remaining unpaid on the articles of agreement, that V. Tonkin, the defendant, made a parol promise contemporaneous with, and independent of the mortgage, to pay the plaintiff the sum of $1,300. The defendant denies that he made any parol promise whatever to pay the plaintiff the amount for which the mortgage was taken; that upon his failure to pay the plaintiff the mortgage was to be foreclosed and the land, or so much as was necessary, sold to pay the debt therein named, viz.: $1,300. The plaintiff accepted the interest in the land described in the mortgage owned by the defendant, and that alone as security for the $1,300, payment to be enforced according to the terms of the paper given by the defendant when the deed was delivered. The defendant claimed that when the plaintiff caused a scire facias to be issued and obtained judgment upon the mortgage, and sold the land, the plaintiff had exhausted the only security asked for and accepted by him from the defendant when the deed was delivered. To sustain his allegations the plaintiff below offered evidence to prove the parol promise of the defendant on the 19th day of August, 1876. The defendant having amended his pleading by adding the plea of actio non accrevit infra sex annos, the plaintiff introduced evidence to prove that the defendant renewed his parol promise alleged to have been made on the 19th of August, 1876, on several occasions afterwards and prior to the issuing of the summons in this case on December 6th, 1882. The defendant denied the original parol promise as well as any subsequent renewals or parol promises to pay the $1,300, independent of the mortgage security.

The following is the charge of the court, JOHNSTON, P.J.

On the 24th day of May, 1873, an article of agreement was made between John B. Baum, the plaintiff, and Vincent Tonkin, the defendant, and Mr. McCurdy for the purchase of the land out of which this controversy has arisen. Afterwards McCurdy's interest was transferred to Hipps & Lloyd. On the 19th day of August, 1876, Mr. Baum made a conveyance to the defendant for this land. I believe that was the date of the delivery of the deed, though it was written some time before; I speak of the deed as not being executed till its delivery. Upon that occasion John B. Baum, the plaintiff and his brother-in-law, Uriah Lloyd, went to Cherrytree for the purpose of settling the balance of the purchase money and delivering the deed. It seems that $2,625 had been paid upon this purchase by these parties, Tonkin and Hipps & Lloyd, and $2,375 remained unpaid. They desired the deed, and out of this transaction arises the only question that is in controversy before you. It is true, the evidence has taken a wider range; but with that evidence you have nothing to do. That Vincent Tonkin made a bad bargain and suffered a loss from that bargain according to the testimony of both the plaintiff and defendant, does not weigh a feather in this case; you cannot take that into consideration at all in coming to your verdict. Where a contract is made the parties are required by law to stand by it, or suffer in damages for the breach of it. The transaction, then, at the office of John Eason, on the 19th of August, 1876, was the foundation of this action. It seems there were $2,375 due from these parties to the plaintiff, $1,075 by Hipps & Lloyd, and $1,300 by Vincent Tonkin, the defendant. If they had attended to their business as business men should, this controversy would never have arisen; and I may say, it was a transaction of a very unusual character. When this deed was passed from John B. Baum to the party defendant here and the other parties, proper security should have been taken; but instead of that we find the singular fact of a bond being taken for the $1,075 with Tonkin as bail for the other parties, and a mortgage from Vincent Tonkin for the $1,300 that he was to pay, without any bond or note or anything to base it on.

Now, in the consideration of this case the mortgage is entirely out of the question, excepting as a basis for the amount, as fixing the amount, or the liability from one to the other; it is no other element in the case than that. It was only a security upon the land; and so far as the mortgage itself was concerned, when it was unpaid, the only remedy that Baum had was the one he actually adopted, to proceed upon the mortgage, sell the land, and raise the money from it, or purchase it himself. That is, then, out of the question; and it is not with that especially that we have to do.

The plaintiff here declares upon the debt created by a promise of Vincent Tonkin cotemporaneous with the deed, made at the same time with the deed, and upon which an action of debt is brought and is the subject of the action now before you. You have to make out a case of this importance from the testimony of the witnesses who were present at the transaction. And just here we may state that the defendant has asked us to instruct you as a matter of law, "that to take the case out of the Statute of Limitations by an acknowledgment made within six years, such an acknowledgment must be plain, unambiguous, express, and so distinct and palpable in its extended form as to preclude hesitation; therefore the verdict should be for the defendant."

I may say here, while we agree with the language of the point "that to take the case out of the Statute of Limitations by an acknowledgment made within six years, such acknowledgment must be plain, unambiguous, express, and so distinct and palpable in its extended form as...