Hyndman v. Hogsett

4 A. 717, 111 Pa. 643, 1886 Pa. LEXIS 549

• Court: Supreme Court of Pennsylvania
• Decided: March 1, 1886
• Status: Published

Opinion

Mr. Justice Green

delivered the opinion of the court March 1st, 1886.

This case was submitted to the court below without a jury trial. The learned judge has made certain findings of fact which bar the'plaintiff’s recovery in any aspect of his case. A part only of the testimony has been printed, and it is alleged by the defendant, and not denied by the-plaintiff, that a much larger part of the testimony has not been printed, and it is thérefore not before us. In the absence of the evidence, of course, we cannot say that' there was error in the findings of fact, or in those conclusions which were or might be based upon facts. One of the most important findings, indeed a controlling one, is that the plaintiff as assignee of Baily had no right to maintain the aption. The contract between Baily and Hogsett is, in terms, limited, so far as Baily is concerned, to him and his heirs. While it is true that a power of alienation results in all ordinary cases from the use of those words, yet it is also entirely consistent with them, especially where the substance of the grant is in the nature of a personal privilege, that “ assigns ” were not intended to be, and are not, possible partakers of the privilege, or other right granted. Upon this subject the learned court below made the following finding: “ The evidence shows the written agreement was intended by both parties to comprehend no .other persons than the heirs of Bail}’-, and that it was not intended to give Baily the right to assign his interest.” If this finding is correct it is fatal to the plaintiffs case. Can we say it is not correct? We have a part of the testimony only, and we have held, indeed we must hold, that we are bound by the statements of facts made by the court below where the evidence is not printed: Joyce v. Lynch, 17 W. N. C., 79. How can we say there was no evidence which justified this finding when we have but a part of it? The argument against the correctness of the finding is founded solely upon the proposition that in legal effect the paper does include “assigns,” though in fact they are omitted from the paper. But the mere inspection of the paper is not the only source of information upon this subject. It is something to the purpose of a contrary inference that while “ heirs ” of Baily are included in the grant, his “ assigns ” are excluded. We are not able to say that evidence that it was the intention of the parties to exclude them from the operation of the instrument is necessarily to be rejected. Such evidence, instead of contradicting the writing, would seem to be in accord with the meaning of the words employed. Some evidence is printed tending strongly to show that it was the expressed intention of both parties at the time, and immediately before, the paper was signed, that Baily’s heirs and Hogsett’s were to be included, and their assigns were to be excluded. One witness whose testimony, or a part of it, is printed, testified that he wrote the paper, and before it was signed, when he read it to the parties down to the last sentence, a discussion arose whether it included anybody but the parties themselves. He adds, “After I read that far Mr. Hogsett wasxx’t quite sure about that, and it was stated there, that it was to be a personal px-ivilege to Mr. Baily, and Baily insisted on having his heirs in, and so I wrote the following clause: ‘This agreement to be binding in favor of Baily and his heirs and against Hogsett and his heirs,’ and wrote it with’ the understanding that it was to exclude the right to assign, and that was the agreement. Just simply to Baily and his heirs, and nobody else.” If this evidence was believed, and there was no reason why it should not be, since it was delivered by a most respectable gentlemair and contradicted by no one, it proves distinctly that the parties, having their attention drawn to the subject, just befox-e signing, mutually agree that “heirs” were to be included and “assigns” excluded, and that the scrivener undertook to express that nxeaning in the paper, and wrote an additional clause for that very purpose. If, in fi’aming that clause, he failed to express that intent, it was a clear case of mistake of the sci'ivener, and comes within an unbroken line of decisions in this State and elsewhere permitting parol evidence to be given to show that a part of the actual agreement of the parties was omitted by mistake from the written contract. What other evidence there was, if any, which justified the finding of the court on this subject we do not know, but it is very clear that we cannot say, in the condition of the record as contained in the paper book, that the finding was erroneous for want of testimoxiy — for want of proof of those facts which justify the admission of parol testimony in such a case. We therefore sustain the finding in this respect. As this destroys the plaintiff’s case it is not necessary to consider the subject of tender in detail.. The court found that no adequate tender was ever made, and it does not appear that after the evidence was given showing what ought to have'been the amount, any tender of any kind was made at any stage of the trial. Usually this is necessary where the amount is not precisely known. As the result of the case does not depend upon a critical examination of either the law or the facts affecting this branch of the controversy, we pass the subject by without further comment.

A suggestion was made, though not pressed, that Hyndman was an innocent purchaser for value without notice, and as such could assert rights higher than his vendor’s. It is only necessary to say that the printed testimony fails to disclose that he ever paid any actual money or property for the assignment; the assignment itself recites nothing but “value received ” as the consideration, and in addition to that the very words of the instrument were sufficient to put him upon inquiry as to the rights of “assigns” under its operation. Moreover, the character of the instrument, involving practically the grant of a personal privilege, involves the question whether the rights of an innocent purchaser for value without notice have any place in such a transaction, and in addition .to that, in the absence of the testimony, we are not sufficiently informed as to whether there was evidence affecting Hyndman’s legal right to assert his position as an innocent purchaser for value and without notice.

Judgment affirmed.