Rodgers v. Black

15 Pa. Super. 498, 1901 Pa. Super. LEXIS 379

• Court: Superior Court of Pennsylvania
• Decided: January 22, 1901
• Docket: Appeal, No. 41
• Status: Published

Opinion

Opinion by

Beaver, J.,

In the bond upon which the plaintiff brought his suit there occurs this provision: “ For the purpose of settling the question as to who is legally entitled to receive the said sum, the said Edgar N. Black, Jr., hereby agrees to join with the said John Rodgers in any legal proceedings that may be appropriate for the purpose of settling the said question, the cost of which to come out of the said fund.” Could there be a recovery upon this bond, without a previous submission in some form to a competent legal tribunal of the question as to who was legally entitled to receive the amount thereof ? The court below took the view that it could be settled in the present action. We see no difficulty in this view of the case. The law seeks to avoid a multiplicity of actions. The fact that the defendant appeared and pleaded may be regarded as a compliance with his agreement to join with the plaintiff in legal proceedings appropriate for the purpose of settling the question as to the legal title to the money held by him. There was certainly no necessity for two actions, the one to determine the liability of the defendant to pay and another to enforce that liability.

The plaintiff was appointed by the United States Circuit Court as “ receiver of the crops growing on the land or harvested since the acknowledgment of the marshal’s deed.” Instead of having the grass cut and cured in the usual way, he acted as an agistor, and had it cropped by ponies as pasturage. Whether used in the one way or the other, it was undoubtedly a crop growing on the land and as such was under the control of the receiver, and was necessarily to be accounted for by him. It was so helu by the court below, and this ruling upon the question constitutes one of the principal specifications of error. The view of the court was so clearly correct that no discussion of it is necessary. Grass growing upon the land is one of the valuable products of agriculture and one of the principal commercial crops. The fact that it was fed to the ponies upon the stalk instead of being cut and cured and fed subsequently as hay, made no difference whatever. It had a commercial value in either case and for that the receiver was responsible.

The question as to whether or not the plaintiff was legally entitled to receive the amount, for the payment of which the bond in suit was conditioned, depended upon the testimony produced by him. Several witnesses were called, among tbem his attorney who conducted the negotiations for a settlement, through the defendant, with the administrator of the estate which owned the ponies pastured. A careful reading of his testimony leaves no doubt as to the fact that the claim of the receiver was settled for the sum of $900, $100 of which was to be paid to the defendant as an attorney’s fee, leaving the sum of $800, for the payment of which the’bond is conditioned, to be paid to the receiver, if he was entitled to receive the same under the terms of his appointment. This wasj it is true, a question of fact ordinarily to be submitted to a jury, but no issue was raised either as to the facts to which the witness testified or as to his credibility. The defendant was present in person during the trial. If any of the statements made by the witness had been the subject of controversy, it would have been very easy for him to raise an issue either as to the facts stated or as to the credibility of the witness. This was not done in any way. In Eister v. Paul, 54 Pa. 196, in reference to a question which is peculiarly one of fact for a jury, Mr. Chief Justice Woodward said: “ The location of surveys, that is, the precise position which they were intended to occupy upon the ground, is generally a question of fact to be decided by the jury, but where the evidence is all one way and is so satisfactory that a court would not sustain a verdict that should find against it, we will not reverse the judgment, because the judge declared the true effect of the evidence instead of submitting it to the jury. If the judge mistake the effect of the evidence, he commits a double error, one in withholding it from the jury and the other in misjudging it himself, but in this instance we discover no error.” This was distinctly followed in the later case of Angier v. Eaton et al., 98 Pa. 594, in which Mr. Justice Sterrett, late Chief Justice, said: “So far as the substantial identity of the valves is concerned, the evidence was all one way, and there was no question of fact for the jury to pass upon. There was really no dispute as to any of the material facts which the court treated as having been establised by uncontradicted evidence. It is true the court might have submitted the testimony to the jury but, under the circumstances, there was no error in not doing so.” It is true that the court below might have submitted tbe question as to whether or not the testimony of Bohlen established the facts as to which he testified, and his credibility, to the jury; but, if a verdict had been found against the uncontradicted evidence, we do not see how it could have been sustained. On a careful review of the whole ease, therefore, upon the authority of the well considered cases above cited, we are of the opinion that the court below committed no error in giving binding instructions to the jury.

The portion of the bond above quoted provides that the cost of the proceedings necessary to settle the question as to who is legally entitled to receive the said sum is “ to come out of the said fund.” A general judgment was entered upon the verdict with interest which would, of course, carry costs. This was an inadvertence and should not, under the terms of the bond, be allowed. It is not necessary, however, to send the case back for a new trial, in order to remedy this inadvertence. We may modify it in pursuance of the general power given to us in the act creating this court. The assignments of error are all overruled and the judgment of the court below is so modified as to direct the payment of the costs in the court below and in this court out of the amount of the judgment entered upon the verdict, and with this modification, the judgment is affirmed.