Hamsher v. Kline , 57 Pa. 397 ( 1868 )

The opinion of the court was delivered, by

Sharswood, J.

In the court below this was an action in which the plaintiff claimed that the defendant, as his attorney, had undertaken to collect a mortgage held by him on a farm and tract of land in the state of Delaware; that contrary to his duty, at the sheriff’s sale under the mortgage, he had concealed from the bidders a material fact, which would have enhanced the price; that he had become the purchaser himself at the sale, for a sum much below what it would otherwise have brought; and that he had not accounted for the purchase-money. On the other hand the defendant alleged, and gave evidence tending to show, that he had not been employed by the plaintiff as his attorney, but as his agent merely, and without compensation; that he had engaged counsel in Delaware to sue out the mortgage; that in company with the plaintiff he had attended the sale; that the fact, the concealment of which from the bidders is now complained off, was communicated to the plaintiff, and that they agreed to buy the property in partnership. He alleged further that the premises were purchased under this arrangement by him; and that he had paid his half of the bid in full; and that the attorney of record settled and receipted on the sheriff’s docket for the whole sum. The sheriff’s deed to the defendant Kline was dated November 24th 1857, and the settlement on the sheriff’s docket November 23d 1857. On December 10th 1857 Kline bought of the plaintiff his interest in the premises; a receipt for the agreed price under the hand and seal of Hamsher was given in evidence; and it was also shown that in another proceeding, four years afterwards, in which Hamsher was examined as a witness, he had testified as follows: “ I once owned this land in Delaware; it was sold by the sheriff; I have no interest in it now; I had an interest in it after the sheriff’s sale; Mr. Kline bought'it for himself and myself.” This statement of the case is all that is necessary to explain the assignments of .error, with which alone we have now anything to do. The 1st and 2d errors assigned are tó a part of the deposition of John Green, which was permitted by the court to be read in evidence. Green was a witness for the plaintiff, and in his re-examination in chief had testified that he had an interview with the defendant, at which he had made a certain statement and exhibited certain papers. The defendant asked him on cross-examination to state all that Mr. Kline said at the time these papers were exhibited. The plaintiff’s counsel objected to the answer, because the plaintiff was not present, and because the declarations were post litem motam. But it is too plain for argument, both on reason" and authority, that the defendant had a right to all that had taken place at the same interview, of which he had given only a part, whether it was ante or post litem motam. Unless the whole of what is said at the same time is received and considered, the true meaning and import of the part cannot be ascertained: 1 Greenl. on Ev., § 202. There was no error therefore in the admission of this evidence.

The 3d error assigned is in admitting in evidence the instrument of writing dated August 20th 1857. There was a subscribing witness, who was examined and said, on being shown the paper, “This is my signature as a witness;” but on cross-examination he added, “ I do not know whether the plaintiff is the person who signed the writing in my presence".” It is well settled that if there is any evidence, however slight, tending to prove the formal execution of a deed, it is sufficient to entitle it to go to the jury: 2 Greenl. Ev., § 295. Pew men can swear positively to the sealing and delivery of an instrument after any considerable time: Piggott v. Holloway, 1 Binn. 442. If, as often happens,- the party is a stranger to the subscribing witness, the same difficulty arises. Identity of name is sufficient in the first instance as presumptive evidence of identity of person: 3 Phillips on Ev. 1301, 1302, Cowen & Hill’s ed.; Atchison v. McCulloch, 5 Watts 13. In the absence of countervailing proof the law presumes against fraud and in favor of innocence: Case of Miller’s Estate, 3 liawle 317. If a subscribing witness is dead, or out of the state, or has become interested since the execution, evidence of his handwriting is sufficient: Prince v. Blackburn, 2 East 250; Hamilton v. Marsden, 6 Binn. 45; Kelly v. Dunlap, 3 P. R. 136. Equal reason exists for the application of the same rule where he has lost all memory of the transaction. Primá facie the presumption is that what he has attested has taken place in his presence: Sigfried v. Levan, 6 S. & R. 311. It is clear that the question of the admissibility of the paper on this evidence was in no way affected by the fact that another witness had testified that he did not recognise it as the bond delivered to Mr. Fisher. This was for the jury. This assignment of error, therefore, is not sustained.

■The 4th and 5th errors alleged are in admitting in evidence an instrument of writing executed by the plaintiff, dated December 10th 1857, because it was not legal evidence of a settlement between the parties for the purchase-money of the tract of land, or the payment of the money therein named. If it was not, it would be difficult to see what would be. It was an acknowledgment under the hand and seal of the plaintiff, that he had “ received of William O. Kline the sum of eleven hundred and fifty dollars in full of the purchase-money of the tract of land” in question. A receipt in full is primá facie, but not conclusive, evidence of a settlement. It may be attacked on the ground of fraud, mistake or ignorance of his legal rights by the party who gave it: Thompson v. Faussat, Peters’ C. C. Rep. 185. So if the relation between the parties was one of trust or confidence, such as guardian and ward, or attorney at law and client, it might be insufficient of itself. But this was clearly a question of fact for the jury, and could not be decided by the court by refusing to admit the paper. These assignments of error are therefore not sustained.

There are fourteen other errors assigned to the answers of the court below in the charge to the points presented. It will be unnecessary to consider them separately. It is not and could not be pretended that the law was not correctly stated. But the complaint is that the learned judge below assumed certain facts as proved, of which uncontradicted evidence had been given, without stopping to qualify each instruction by informing the jury that the facts were for them. He did so tell them emphatically once. “ The jury are entitled to take all the evidence into view in determining whether Kline did act in a professional capacity for Hamsher. This and every other question of fact throughout this cause must be decided by the jury. Principles only can be laid down by the court.” Nor can we see any ground for another complaint made in the argument that the jury were misled by the learned judge below. The points presented were so framed that a categorical affirmance or denial could not be given. The instructions to the jury in substance were that if Kline had undertaken to have the mortgage collected through an attorney at law in Delaware; if the plaintiff was present with Kline at the sale; was fully informed by him of all the circumstances material to be known, and agreed to join him in the purchase; that Kline paid his full share of the bid, and that matter was settled; and that afterwards, in absence of all fraud, undue influence or mistake, Hamsher sold his interest to Kline, and received from him the full consideration; the verdict of the jury'ought to be for the defendant. In his answer to the plaintiff’s 5th point, the learned judge said, “An agent ought to make a full disclosure of every fact that can benefit the principal, and cannot violate this rule without being liable for any injury that might have been avoided if the principal had been better informed. Whether Kline had performed his duty in this respect, is a question of fact for the jury on the evidence.” Indeed it is plain that if the plaintiff in error has suffered injury, it has been at the hands of the jury and not of the court.

Judgment affirmed.