Thomas v. Butler

24 Pa. Super. 305, 1904 Pa. Super. LEXIS 173

• Court: Superior Court of Pennsylvania
• Decided: March 14, 1904
• Docket: Appeal, No. 94
• Status: Published

Opinion

Opinion by

Rice, P. J.,

When this case was here before (16 Pa. Superior Ct. 288) we held, reversing the court below, (1) that on the trial of a sheriff’s interpleader to determine the ownership of chattels levied upon as the property of a husband, but claimed by his wife, the husband, who had testified in his wife’s behalf as to the transfer of the title from him to her and as to the consideration therefor, ' might be required on cross-examination to answer whether he had not made certain declarations to third parties,-naming them, at or about the time of the alleged transfer, concerning his indebtedness and the ownership of the chattels, these declarations being inconsistent with, and tending to contradict, the testimony he had given on the trial; (2) that if the witness had given a negative answer, this would have opened the door to contradiction by the testimony of other witnesses as to such declarations ; (3) that as the court,- upon the objection of the party calling him, had refused to permit the witness to be cross-examined as to such declarations arid as to the time, place and persons involved therein, the testimony of third persons as to them could not be objected to, because proper ground was not laid for it. In support of the last proposition we cited Miller v. Baker, 160 Pa. 172. Our ruling that the declarations of the husband were admissible in evidence under the circumstances stated was expressly put on the ground, and that alone, that the defendants had a right in any legitimate mode to impeach the witness by whose testimony the plaintiff sought to establish her title, even though that witness was her husband. We entertain no doubt whatever as to the correctness of the ruling. It would have been the law governing this branch of the case, if the same question had arisen on the second trial, and we assume that the presiding judge would have accepted it as binding upon him and would have applied it without detracting in any mode from its force, even though he was not convinced in his own mind that his ruling in the former trial was erroneous. But on the trial now under revision the husband was not a witness, nor was he a party to the action. The question above stated did not arise. If the presiding judge was right in holding that the declarations of the husband made after the transfer to his wife and in her absence were not admissible in evidence, his discussion of the question decided by us on the former appeal, though irrelevant, was not prejudicial error. Was he right in so holding? The bill of sale for many of the articles in question from D. R. Thomas to Mary S. Thomas his wife, was dated in August, 1895. In February, 1897, D. R. Thomas obtained a loan from Thomas Butler for which he gave his judgment note with Burdine Butler as surety. Judgment was entered on the note and a fi. fa. issued thereon returnable to August term, 1897, by virtue of which the property in question was levied upon. Mary S. Thomas claimed it and an issue was framed between her as plaintiff and Thomas Butler and Burdine Butler as defendants to determine the title. On the trial of the issue Burdine Butler testified that in conversations he had with MaryS. Thomas and her husband, after the date of the bill of sale, and before the date of the loan, they said “ they were afraid of the costs on the Rishel and Fannan case selling them out;” “that the bill of sale was made to defraud the creditors, to keep the Rishel case' from selling them out; ” that “ she said once it was made up for a fraud to keep the people that were interested in the Rishel case from selling them out for costs ; ” that they “ just said that' that bill of sale did not amount to anything, that it was fixed up to keep out the people they owed on the Rishel ease, the costs.” The defendants then offered to prove the declarations of D. R. Thomas made after the date of the bill of sale and before the levy, but not in the presence of bis wife, to the effect that the personal property on the farm belonged to him and not his wife — this would include the property covered by the bill of sale — also that he had made the bill of sale to his wife to keep creditors from selling him out. The rejection of this offer to show the subsequent declarations of the plaintiff’s husband is the subject of the first assignment of error. A similar question is raised by the third assignment.

It is argued by the appellants’ counsel that the general rule that the declarations of the grantor, made after he had parted with his title, are not admissible for the purpose of impeaching it, has been so modified that when the bona fides of the transaction is assailed by creditors on the ground of fraud, and some testimony is introduced tending to show collusion, then such subsequent declarations of the grantor are admissible. In support of this prosposition he cites numerous cases, and amongst them Souder v. Schechterly, 91 Pa. 83, wherein the validity of a conveyance of real estate from husband to wife being in question, and some evidence having been given to show that it was collusive and fraudulent as to creditors, the subsequent declarations of the grantor, made in the absence of the grantee, were held admissible. It does not appear, however, from the report of the case that the question whether this modification of the general rule would be affected by the fact of the marital relation of the parties to the transaction was raised or discussed by court or counsel. It is to be noticed also, that at the time of the trial that relation had been dissolved by the death of the husband. But in Martin v. Rutt, 127 Pa. 380, the question appears to have been passed upon. In that case, which was a feigned, issue framed under a sheriff’s interpleader act to try the title to goods levied upon as belonging to the husband, but claimed by his wife, the declarations of the former adverse to her claim, made in her absence and after the levy, were admitted under objection and exception. This was held to be error, for the reason, amongst others, that they were the declarations of husband against wife. Mr. Justice Green, who delivered the opinion of the court, said: “ They were inadmissible upon any theory. As declarations, they were secondary only, not being the declarations of the plaintiff herself. As the declarations of an agent, they were incompetent because they were not part of the res gestee. But 'they were fatally incompetent for the entirely independent reason that they were the declarations of a husband offered against his wife.” He seems to have had in mind the exception to the general rule relied on by the defense in the present case, for he further said: “Neither the theory of a conspiracy, nor the fact that the husband was the defendant in the execution under which the goods were sold, helps the question iii the least degree. It is still the testimony of the husband against the wife, and is interdicted.” Some of the other cases cited by the court below in support of the ruling under consideration are distinguishable from the present, but we are of opinion that no error was committed in holding, upon the authority of the case last cited, that the testimony was inadmissible.

The offer embraced in the second assignment might have been relevant, if it appeared that any of the articles purchased from J. W. Baisor and paid for by the husband were involved in this case, but no evidence to that effect has been pointed out to us. The fact, standing by itself, that the store account for purchases of articles for use on the farm was kept in the name of her husband was irrelevant as against her unless she knew how the merchant kept his books, and of this we find no evidence. It is true she had testified that, after the date of the bill of sale, the lease of the farm was assigned to her, that thereafter she paid the rent, managed the farm, received the proceeds and hired and paid the employees, and that her husband did nothing without her permission; but we are not convinced that there is such real or apparent inconsistency between this testimony and the fact that her husband bought and paid for goods for the use of the family and on the farm as made it reversible error to reject the offer to prove that fact for the purpose of contradicting her, and thus impeaching her credibility.

The third point seems to have been framed to meet the contingency of a finding by the jury that the statements to Burdine Butler above referred to were not made by the plaintiff but were made by her husband in her presence and were not denied by her. It is thus seen that the defendants raised a question upon which the decision in Paul v. Kunz, 188 Pa. 504, was a pertinent and binding authority. The court might have contented itself with a bare refusal of the point and a statement in its charge that plaintiff’s mere silence would not estop her. The jury would have been bound to accept that statement of the law upon the question raised by the defendants’ point as conclusive upon them, and doubtless would have done so ; but surely it was not prejudicial error for the court to sustain its instructions by reading to them a pertinent portion of the opinion of the Supreme Court in the case referred to.

But a party, upon request made to the court, is entitled to a clear and distinct instruction on the rule of law applicable to his case, and it is error in the court either to omit to give it, or to give it in so imperfect a manner that the jury may be misled or left uninformed of the law : Slaymaker v. St. John, 5 Watts, 27. Applying this principle to the case in hand, the defendants were entitled to have the jury definitely instructed as to the law applicable to the case in the event of their finding that the plaintiff actively joined with her husband in making the representations, that they meant by them that, notwithstanding the sham bill of sale, the whole beneficial ownership of the goods was in the husband, and that Thomas Butler became surety on the faith of the representations. The instructions quoted in the fifth assignment of error did not fully meet that question. After reciting the facts that had been testified to by the defendants’ witnesses, and after submitting the determination of them to the jury, the court said, “ that would, perhaps, under the language of the Superior Court in this case, act as an estoppel to her setting up a claim that the title to this personal property was in her.” It is argued that this ambiguous expression had a tendency to mislead the jury, because it might be taken by them to mean that they were to determine whether the ruling of this court upon this precise question, in this very case, was to be accepted by them as a correct statement of the law. Much force is lent to the argument by the fact that the court in discussing the question of estoppel read to the jury .portions of the opinions of the Supreme Court in cases relative to the estoppel of a married woman to assert her title to real estate, without pointing out the distinction between them and the case in hand. It seems to us that this was an undesirable mode of instructing the jury as to the law applicable to the defense of estoppel set up in the present case. It would have been inadequate, because indefinite, if this had been all that the court said upon the subject. But it is to be noticed that the court did not end its instructions here but proceeded immediately, and in that very connection, to affirm the defendants’ first point which covered the ground, and was as strong a statement of the law as defendants were entitled to ask. The court evidently intended this to be the conclusion of the whole matter and we think it must have been so understood by the jury.

Whether the plaintiff was estopped to set up her title under the bill of sale, as against others than the defendants, was a collateral question, the determination of which in the affirmative would not affect the determination of the issue being tried. Therefore there was no error in refusing the point quoted in the sixth assignment;

Upon a review of the whole case we discover no error of sufficient gravity to warrant a reversal of the judgment.

All the assignments of error are overruled and the judgment is affirmed.