Frick v. Shimer , 26 Pa. Super. 563 ( 1904 )

Opinion by

Mobbison, J.,

Defendant was executor of plaintiff’s father, Horace E. Frick, deceased, and the administrator of Emeline Vesey, deceased, plaintiff’s grandmother. Plaintiff had an interest in both estates. On April 10, 1902, defendant paid to plaintiff, soon after he had reached his majority, on account of the latter’s share in the estate of Emeline Vesey, deceased, $1,200, by check which plaintiff at once indorsed, “ Pay to the order of the estate of Horace E. Frick, Charles Vesey Frick,” andhaiided the check back to the defendant. At the time plaintiff gave to defendant, as administrator, a receipt for the said $1,200, on account of his share in the Vesey estate, and defendant promised to send plaintiff a receipt for the check so indorsed and delivered to the defendant. On April 14,1902, defendant sent by mail to plaintiff a writing as follows: “Philadelphia, Penna., April 14, 1902. Received of Charles Vesey Frick the sum of twelve hundred dollars ($1200), the same being a loan to the estate of Horace E. Frick, J. N. M. Shimer.”

Plaintiff received this paper in due course of mail and re-, tained it. Subsequently the plaintiff demanded a return of the money and this being refused he brought this suit, in assumpsit, and declared against the defendant for the said sum of $1,200, “ which plaintiff loaned to defendant on or about April 10, 1902, which said loan was made under the following circumstances, to wit: “Plaintiff’s father, Horace E. Frick, died leaving a will whereby he appointed the said defendant as his sole executor, and that at the time of decedent’s death he was a member of the firm of Horace E. Frick & Company engaged in the business of selling castings and steel boilers,” etc. “ That the plaintiff loaned the said sum of $1,200 to the said defendant, to use the same in carrying on and incorporating the said business in which plaintiff’s father was engaged at the time of his death, provided, however, that the plaintiff’s grandmother, Rebecca E. Frick, and plaintiff’s aunt, Mrs. Hibbert P. John, each loaned the defendant a like amount for that purpose. That as an evidence of said loan the said defendant gave to the plaintiff an obligation or receipt in writing, of which the following is a copy : ” (Here follows a copy of the receipt above quoted).

The declaration then avers in plain terms “ that the plaintiff’s said grandmother and aunt subsequently refused to loan the defendant any money for the purpose aforesaid, and the said business was not incorporated, but was sold by the executor at public sale, and thereupon plaintiff demanded of the defendant the payment of the said sum of $1,200 to him, which the defendant refused to. pay, and still refuses to pay the same, notwithstanding the fact that the defendant had promised to repay the same to the plaintiff.” The declaration further avers that the defendant is justly owing the plaintiff in his individual. capacity for the said sum of $1,200, and that no part of it has been paid, etc.

In his affidavit of defense and testimony the defendant admitted the receipt of the money but denied that it was received for the purpose named by the plaintiff and averred an entirely different contract.

Upon the trial the whole question was whether the plaintiff = was correct in his contention or was the transaction as set up by the defendant in reply to the plaintiff’s claim. The learned court submitted the question of fact to the jury in a charge which is entirely fair unless it is open to criticism as to what was said in regard to-the receipt of April 14, 1902.

A careful examination of the testimony leads us to the conclusion that it strongly sustained the plaintiff’s contention that he loaned the money to the defendant, substantially as stated in his declaration, and that before the suit was brought the contingency had arisen which entitled the plaintiff to have the money returned to him. But the court fairly submitted the defendant’s theory to the jury and plainly said in the charge that if the money was turned over to the defendant on the terms contended for by him, then the plaintiff could not recover.

Defendant strongly contends that the plaintiff’s theory is in direct conflict with the terms of the receipt of April 14, 1902, and the plaintiff’s indorsement on the back of the $1,200 check, which he delivered to the defendant. But we cannot agree with this contention. The indorsement and receipt are not clearly inconsistent with the plaintiff’s claim that the money was advanced for a special purpose, and if not used for that purpose, it was, in effect, a loan to be returned to the plaintiff. Now, assuming that the defendant had no authority, as executor, to borrow money on the credit of the estate of Horace E. Frick, it follows that he may have bound himself personally for the repayment of the money, provided it was not used as agreed at the time of the loan: Geyer v. Smith, 1 Dallas, 347; Grier v. Huston, 8 S. & R. 401; Seip v. Drach, 14 Pa. 352; Fehlinger v. Wood, 134 Pa. 517 (see p. 522).

All of the assignments of error are based on the treatment, by the court, of the receipt and the indorsement on the check. .In our opinion this receipt is not so clear and definite, upon its face, that parol evidence> could not be introduced to enable the jury to get at the real transaction between the parties. We do not discover any serious error in the charge of the court contained in the several assignments of error. Nothing shows clearer that the receipt and indorsement require parol evidence to show.the real contract between the parties, than the fact that the parties themselves and their counsel, have never yet been able to agree as to the meaning of the writings. Moreover the indorsement and receipt are not so clear that a court can say, as matter of law, just what the contract was. In addition to this the receipt was not made for four days after the check was indorsed and delivered to the defendant, and therefore it is no more than the ex parte statement of the defendant, made after the transaction was closed. Then again the defendant did not seem to be clear at the trial as to what his defense was under the receipt.

If this receipt came within the rule in Jessop v. Ivory, 158 Pa. 71, there would be much force in the contention that the court erred in admitting parol testimony and in the charge as to the effect of the receipt. In that case the defendant showed, and indeed it was admitted that the written receipt contained an agreement to return the money in a certain contingency, and the presumption therefore was that there was no other contingency. But not so with the receipt in the present case. It does not show the contingency in which the “ loan ” should be repaid. And the court was clearly right in saying that the receipt did not fit into the theory of either party. In our opinion the court fairly submitted the defendant’s theory to the jury and it was his misfortune that the jury did not believe in and adopt his defense.

We do not think any authority can be found requiring the court to so construe the indorsement and receipt that the plaintiff should be deprived of going to the jury on his version of the contract made at the time of the transaction. In our opinion the cases fully warranted the court in permitting the jury to find the real contract from the evidence. The competency of parol evidence in this case is shown by many authorities but we will only cite the following: Shoemaker v. Stiles, 102 Pa. 549 (see p. 553); Wolf and another v. Phila., 105 Pa. 25 (see p. 30).

The assignments of error are all dismissed and the judgment is affirmed.