Williams v. Moore

• Decision Date: 19 July 1899
• Docket Number: 318
• Citation: 192 Pa. 211,43 A. 1022
• Parties: William W. Watkins, now assigned to Edward J. Williams, and Edward J. Williams in his own right, v. Emily I. Moore, Administrator of the Estate of William Moore, Appellant
• Court: Pennsylvania Supreme Court

43 A. 1022

192 Pa. 211

William W. Watkins, now assigned to Edward J. Williams, and Edward J. Williams in his own right, v. Emily I. Moore, Administrator of the Estate of William Moore, Appellant

No. 318

Supreme Court of Pennsylvania

July 19, 1899

Argued February 22, 1899

Appeal, No. 318, Jan. T., 1898, by defendant, from judgment of C.P. Lackawanna Co., Sept. T., 1896, No. 563, on verdict for plaintiff. Reversed.

Assumpsit on an alleged parol contract. Before EDWARDS, J.

The facts appear by the opinion of the Supreme Court.

When W W. Watkins was on the stand the following offer was made:

Mr Newcomb, of counsel for plaintiff: We offer to show by the witness on the stand that at the time in question Mr Williams wanted a deed to be made; that Mr. Moore stated that what he wanted to do was to get this property sold so that he could get $25,000 out of it; that after Mr. Fellows would put in $5,000, he would take their mortgage on the land in question for the balance, and that they should then go on exploring the property, and that they would have all that they could get over this $20,000; that in pursuance of that they continued the explorations of the property at considerable expense of money and labor, and becoming somewhat discouraged, they made known to Moore that they were discouraged and that they desired to give up the property and let him have it back; that thereupon Mr. Moore urged them to continue their efforts and explorations, and offered if they would do so to find a purchaser of the property, so that he could realize the cash for the mortgage; that they borrowed the sum of $3,000 in order to continue the work. To be followed by other evidence showing that they did extend their explorations and expended considerable money and labor until the succeeding spring when the property was sold, so that Mr. Moore realized the amount of his mortgage in cash on or about the month of November, 1892.

Mr. Price, of counsel for defendant: Objected to, because (1) it is an attempt to contradict the written option and deed and to make a new parol contract affecting title to the land in the Moore tract, while afterward the plaintiff conveyed and made a profit from the land, which in fact is a contradiction of the written papers under which the parties took title and which title was sold and conveyed; (2) it is admitted that a written contract may be changed by a subsequent parol contract, but this cannot be done, where deeds convey land and the grantees afterward sell and convey the title obtained from their grantor at a profit to themselves; (3) it is not competent evidence; (4) the allegata and the probata differ, and the facts they now propose to prove are different from the facts set forth in the declaration.

The Court: We overrule the objections and admit the evidence. An exception is noted for the defendant at whose request a bill is sealed. [1]

Mr. Newcomb: We offer to show by J. Lewis Jones that he met Mr. Moore in the office of Alderman Williams, upon the occasion of coming to see about some work he had done for the alderman, and that upon coming to the office, he happened to hear Mr. Williams asking Mr. Moore when he was going to pay them the $3,000 that he was owing them for work they had done, or words to that effect; that Mr. Moore answered substantially that he didn't intend to pay it; thereupon Mr. Williams asked Mr. Moore if he hadn't promised to pay it, pay them the $3,000, if they would go on and prove the property so that he could sell it and realize the $20,000 on the mortgage, and that Mr. Moore answered saying that he had so promised, he believed, but he hadn't put it in writing and that they could not collect it. This for the purpose of corroborating the witnesses who have testified on that point.

Mr. Price: We object to this offer because (1) it is attempt to do away with the regular title to this property; (2) the evidence is not competent; (3) it is an attempt by parol to set aside the writings between the parties; (4) the contracts were executed and the plaintiffs in this case had conveyed their title and received therefor a valuable consideration.

The Court: Overrule the objection. An exception is noted for the defendants, at whose request a bill is sealed. [2]

W. W. Watkins on the stand.

Mr. Price: Did you sign a bond in connection with that mortgage?

Mr. Newcomb: We object to the question as irrelevant and immaterial. Let them produce the paper. The contents of the bond may be material, but we ask for the paper.

Mr. Price: It will turn out that the mortgage is satisfied.

The Court: Sustain the objection. An exception is noted for the defendant at whose request a bill is sealed. [3]

Mr. Price: Isn't it true that Mr. Moore put everything in writing when he had anything to do with you, and signed it himself and had you sign it?

Mr. Newcomb: We object to the question as irrelevant, incompetent and immaterial and not cross-examination.

The Court: The objection is sustained. An exception is noted for the defendant, at whose request a bill is sealed. [4]

The court refused to permit defendant to read plaintiff's statement to the jury. [13]

Esther Watkins, witness, on the stand.

Mr. Newcomb: We offer to corroborate Mr. Watkins with regard to the statement made by Mr. Moore to the effect that he was asked to put their agreement in writing; that he said that his word was as good as any writing they could have, and that they would get their money as soon as he got the money on the mortgage, as soon as he got the money on the mortgage he would count out the money to them.

Mr. Price: We object to this as being irrelevant, incompetent and immaterial.

The Court: Overrule the objection. An exception is noted for the defendant at whose request a bill is sealed. [5]

The court charged in part as follows:

[The question for you to decide is, did William Moore promise the $3,000 under the circumstances testified to by Mr. Watkins, and the further inquiry will be whether this promise was supported by a sufficient consideration. Is the testimony produced on behalf of the plaintiff of such a reasonable character as to convince you of the existence of the promise I have referred to, and made under the circumstances testified to by W. W. Watkins.]

[What is the claim of the defendant in this case to offset the claim made by the plaintiff? The claim is all throughout the case, that the character of the plaintiff's contention is somewhat extraordinary; that the position of the plaintiff is untenable and not of such a character as to produce conviction of the truth and correctness of his position. They say that such testimony as that and such circumstances as have been related by Watkins are unavailable because Watkins and Williams were the owners of the land themselves and could do what they pleased with it. They could keep boring or quit boring. They also claim that, so far as the evidence in this case shows, the plaintiff, and with him W. W. Watkins, at the time Watkins had an interest in this contract, that they had paid out no considerable sum of money. The defendant claims that at the same time no such contract existed. These circumstances are for you to consider. If he made this contract it would be binding upon the estate regardless of the amount of money Watkins and Williams had received from Fellows on account of their connection with this land. At the same time the defendant claims that there was no consideration.]

[Then there are other circumstances which they claim throw some discredit upon the testimony of Watkins, the first of which was when the four of them had this property it was not in the power of Watkins and Williams to tell Moore that they would cease testing the land, because there were two other persons who were interested in the land. This you may consider as stated in connection with all the evidence in this case. It is not at all conclusive because it may happen that Watkins and Williams did do this without the knowledge of Brennan and without the knowledge of Fellows, and yet that Moore made the contract testified to in this case.]

[Then you had the testimony that Fellows had heard no complaint made as to the success of the boring operations on this land. The purpose of that is to throw some discredit on the testimony of Watkins that the boring was not successful, and the developments were not what they expected.]

[As has been already stated, it is a claim against the estate of a person who is dead. His lips are sealed in death, and we have no way of getting his testimony. Of course that closes the lips of the party on the other side, as he is a person interested in this contract; so that Mr. Williams cannot be sworn and cannot give his testimony. And William Moore being dead we cannot get his testimony.]

Defendant's points and the answers thereto were as follows:

1. Under all the evidence of the plaintiff in this suit the verdict must be for the defendant. Answer: This is denied. [11]

2. If the jury believe that John H. Fellows paid the costs of all boring and prospecting done upon the property sold by William Moore to Watkins and Williams and others, and that Watkins and Williams each received $2,000 as purchase money for the interest of each in the property, the verdict of the jury must be for the defendant. Answer: This is refused. [12]

Verdict and judgment for plaintiff for $4,012.50. Defendant appealed.

Errors assigned among others were (1-5, 13) rulings on evidence, quoting the bill of exceptions; (6-12) above instructions, quoting them.

The judgment is reversed and a new venire awarded.

Samuel B. Price, for appellant. -- If there is a variance between the declaration and the evidence in stating the consideration of a contract, and an...