Quick v. Van Auken

3 Pennyp. 469

• Court: Pennsylvania Court of Common Pleas, Pike County
• Decided: October 1, 1883
• Docket: No. 234
• Status: Published

Opinion

October 1, 1883.

— The opinion of the Court was delivered by

Sterrett J.:

The defendant, claiming to have a defense to eight judgments held by the plaintiffs, petitioned the Court for equitable relief, and thereupon a written agreement was entered into by the parties that an issue, embracing all the judgments, should be framed for the purpose of determining how much, if anything, was due thereon. The judgments, aggregating over §56,000, were opened by the Court, and it was agreed that.the whole should “be tried under one issue to May term, 1880, the notes to stand as a declaration, and the plea of payment, set off, &c., to stand for a plea. The questions raised by the affidavit to open the judgments to be the questions investigated.” Notwithstanding some of the judgments were held by the husband in his own right, and the others by his wife, it was clearly competent for the parties, plaintiffs and defendants, to settle, by mutual agreement, the form of the issue that should determine how much, if anything, the defendant owed on the aggregate amount of the judgments. It is time a separate issue might have been framed as to each judgment, but that would have been attended with increased trouble and expense, which it was doubtless the desire of the parties to avoid. After trial on the merits, technical objections to the issue come with very bad grace from the party whose success was not equal to his anticipations. The several assignments of error relating to "the issue, its alleged irregularity, &c., are not sustained.

The question presented by the issue was one of fact, exclusively for the jury, and their verdict should not be disturbed unless manifest error intervened during the course of the trial.

As stated by the learned judge in his charge, the defense substantially was, that a valuable stallion, which had been received by the plaintiff, Quick, as collateral security for the judgments, had been disposed of by him, contrary to the understanding and agreement of the parties, for a grossly inadequate price, and consequently the defendant in the judgments is entitled to credit thereon for the full value of the horse thus wrongfully disposed of. Testimony tending to prove these allegations was introduced, and it also appeared that the horse in question was the subject of a chattel mortgage to Quick, the plaintiff, and one Rowland, in the State of New York. In view of the defense set up and the testimony introduced to sustain it, the plaintiffs requested the Court to charge that “the defendant having given a chattel mortgage on his horse, and the mortgage being due and unpaid, the plaintiffs had a legal right, under the laws of the State of New York, to foreclose the mortgage and sell the horse at any time, and such sale would pass a perfect title to the horse; and plaintiffs would be obliged to account to defendant for the proceeds of sale, if said mortgage was held as collateral to the judgments included in this issue.” This controlling proposition was affirmed by the Court unless the jury should find that the parties, by a valid agreement, qualified the chattel mortgage and thereby suspended the legal right of Quick to foreclose the mortgage without the assent of Rowland and Van Auken.

There was some testimony tending to prove the alleged agreement qualifying the terms of the chattel mortgage, and the same was submitted to the jury, in connection with the foregoing answer to plaintiffs’ point, in which reference is made to the agreement. The case was thus made to turn upon the question of fact, whether such qualifying agreement was made or not. The verdict conclusively proves that the jury found the fact as alleged by the defendant. Other points relating to the alleged agreement, and the legal effect thereof, were submitted to and correctly answered by the Court. The testimony tended to prove mutual promises by one party to the other, in regard to the time and manner of selling the horse, in case a sale should become necessary. This evidence was for the jury, and if they found that such mutual promises were made, they were a sufficient consideration for the agreement alleged and relied on by the defendant. The rule of law, as to the nature and degree of evidence necessary to change or alter a written agreement, was properly given to the jury. They were instructed that “the proof must be clear, precise, and indubitable.” The subject of complaint in the 11th specification is the refusal of the Court to permit plaintiffs to prove that, nearly two years after the sale, they offered to return the horse to the defendant. If it was true, as alleged by defendant, that Quick, in bad faith, and in contravention of their agreement, sold the horse for an inadequate price, without defendant’s knowledge or consent, and thereafter held and used him as his own for nearly two years, the defendant was not bound to accept the alleged tender. Under the circumstances, he had a right to treat Quick as a wrong-doer, and hold him for the value of the horse at the time of the illegal sale; and so the learned judge in substance instructed the jury. We discover no error in the admission or rejection of evidence. The testimony was such as to warrant the Court in submitting to the jury the several questions of fact above referred to, and' that appears to have been done in such a way as to be free from substantial error.

Judgment affirmed.