Kelsey v. Tourtelotte

Supreme Court of Pennsylvania

Kelsey v. Tourtelotte

59 Pa. 184, 1868 Pa. LEXIS 241

DecidedOctober 20, 1868

StatusPublished

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Bluebook

Kelsey v. Tourtelotte, 59 Pa. 184, 1868 Pa. LEXIS 241 (Pa. 1868).

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Opinion

The opinion of the court was delivered, November 2d 1868, by

Agnew, J.

There being no bill of exception to the admission of the lease in evidence, the case rests upon the error assigned to the charge. It seems to us that the learned judge of the court below did not submit to the jury the question of f^ct whether the lease was finally executed between the parties. He told the jury that the lease was sufficiently proved, belonged to the plaintiff, was delivered by the defendant to him, and that there was no understanding that it or a duplicate was to be redelivered to the defendant. Had the question related to the possession of the paper, this might have been quite proper. But the real question presented by the testimony was, whether the lease was actually consummated between the parties.

Admitting that the plaintiff might desire to hold possession of the paper as his security for the performance of Kelsey, the principal defendant, yet the proof left it extremely doubtful, if indeed it did not fail to show, that the plaintiff had executed it with the knowledge and assent of Kelsey. When Kelsey brought it to the agent of the plaintiff the latter did not then execute it. There is no proof that Kelsey left it with the agent to be signed by him at his leisure, or upon any terms which would evidence that the paper was to be considered as the final contract of the parties.

All we know of it is, that several days after Kelsey brought it to the agent, the latter, in the absence of both Kelsey and O’Brien, signed it. There is no evidence that the agent gave Kelsey notice of his having finally executed the lease, or that Kelsey ratified it. On the contrary, the fact that Kelsey neither took possession under the lease, nor paid the rent, which was required by its terms to to be paid in advance, is evidence tending to show that he did not believe there had been a final execution of the contract by the plaintiff. Delivery, in its legal acceptation, was as necessary on part of the lessor, even though he should retain possession of the paper, as it was on part of the lessee; yet it is clear that under the charge this question was not submitted to the jury.

The judgment is therefore reversed, and a venire de novo awarded.

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The opinion of the court was delivered, November 2d 1868, by

Agnew, J.

There being no bill of exception to the admission of the lease in evidence, the case rests upon the error assigned to the charge. It seems to us that the learned judge of the court below did not submit to the jury the question of f^ct whether the lease was finally executed between the parties. He told the jury that the lease was sufficiently proved, belonged to the plaintiff, was delivered by the defendant to him, and that there was no understanding that it or a duplicate was to be redelivered to the defendant. Had the question related to the possession of the paper, this might have been quite proper. But the real question presented by the testimony was, whether the lease was actually consummated between the parties.

Admitting that the plaintiff might desire to hold possession of the paper as his security for the performance of Kelsey, the principal defendant, yet the proof left it extremely doubtful, if indeed it did not fail to show, that the plaintiff had executed it with the knowledge and assent of Kelsey. When Kelsey brought it to the agent of the plaintiff the latter did not then execute it. There is no proof that Kelsey left it with the agent to be signed by him at his leisure, or upon any terms which would evidence that the paper was to be considered as the final contract of the parties.

All we know of it is, that several days after Kelsey brought it to the agent, the latter, in the absence of both Kelsey and O’Brien, signed it. There is no evidence that the agent gave Kelsey notice of his having finally executed the lease, or that Kelsey ratified it. On the contrary, the fact that Kelsey neither took possession under the lease, nor paid the rent, which was required by its terms to to be paid in advance, is evidence tending to show that he did not believe there had been a final execution of the contract by the plaintiff. Delivery, in its legal acceptation, was as necessary on part of the lessor, even though he should retain possession of the paper, as it was on part of the lessee; yet it is clear that under the charge this question was not submitted to the jury.

The judgment is therefore reversed, and a venire de novo awarded.

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Bluebook (online)

59 Pa. 184, 1868 Pa. LEXIS 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelsey-v-tourtelotte-pa-1868.