A. G. Dewalt and Reuben J. Butz, both of Allentown, for appellant. George R. Booth and H. A. Cyphers, both of Bethlehem, for appellees. BROWN, J. By a writing dated April 24, 1909, the Rittersville Hotel Company, the owner of a park, leased a building in it to the appellees for a term of five years, with the privilege of renewing for a further term of the same duration. The parts of the writing which are material in passing upon the question involved in this proceeding are as follows: "The lessor hereby agrees to sell to the lessees, and the lessees agree to buy from the lessor, the carrousel with all its appurtenances now contained in said casino, and to replace it with another as below mentioned, and the lessees agree to pay for the same the sum of thirty-five hundred dollars ($3, exceptions to the acknowledgment and delivery of a sheriff's deed. They arise from the same facts, were heard together in the common pleas, and argued together here. The main contention of the appellant is based on the fact that the alias writ under which the real estate was sold was issued before the return of the original writ under which there had been a sale of personal property. The court properly held that this was an irregularity of which the defendant might take advantage, but that it was his duty to act promptly. Seven weeks elapsed between the issuing of the alias writ and the sale, and the court was not satisfied by the testimony that the defendant had not known of the irregularity, and had not purposely refrained from objecting to it until after the sale. The sale of the liquor license and the bars on the original writ were set aside for the reason that the former was not sub-500), which shall be paid as follows: $1,000 ject to execution, and the latter was a part at the time of the signing of this contract, of the realty. It did not appear that their which amount is hereby acknowledged; $1,sale had injuriously affected the value of 000 on July 1st, 1909; $1,000 on August 1st, the real estate. No offer of a better bid 1909; $500 on August 15th, 1909, the carat another sale was made, and the court dis-rousel to be the property of the lessor until tinctly found that there was nothing before it to justify a conclusion that there was inadequacy of price. The appeals are dismissed, and the orders appealed from are affirmed at the cost of the appellant. (240 Pa. 79) * * the full amount is paid. In case the lessees wish to change or remove said new carrousel or organ, it shall be done only with the written consent of the lessor. * The lessees hereby grant unto the lessor the right and option of purchasing the aforesaid leasehold, together with all things thereunto belonging or appertaining, on September 15th, 1909, at the price of $5,000, on September 15th, 1910, at the price of $3,500, March 24, and thereafter at the price of $2,000. D. C. MULLER & BRO. v. RITTERSVILLE (Supreme Court of Pennsylvania. 1913.) 2. FIXTURES (§§ 14, 31*) LANDLORD AND term. [Ed. Note.-For other cases, see Fixtures, Cent. Dig. §§ 22, 25, 62; Dec. Dig. §§ 14, 31.*1 Appeal from Court of Common Pleas, Le high County. Action by D. C. Muller & Bro. against the Rittersville Hotel Company. From an order making absolute rule for judgment for want of a sufficient affidavit of defense, defendant appeals. Affirmed. Argued before FELL, C. J., and BROWN, POTTER, ELKIN, and STEWART, JJ. * At the end of said term the lessees may remove their property from the demised premises, but shall do so without doing any damage thereto." The appellees took immediate possession of the casino building, paid for the carrousel, and installed a new one in accordance with the terms of the agreement. On September 15, 1910, the appellant notified the appellees that it would exercise its option to purchase the leasehold for $3,500, and made a tender to them of that sum, demanding at the same time that they execute and deliver to it a bill of sale for the carrousel which it had sold to them. The appellees refused to execute the bill of sale, but agreed. to accept the sum tendered and vacate the leased building. Some time after September 15, 1911, the appellant twice notified the appellees that it intended to exercise the option given to purchase the leasehold, and on each occasion made a tender of $2,000, coupled, however, with a demand for a bill of sale of the chattels. These demands having been refused by the appellees, the appellant took possession of the casino building on May 20, 1912, and claimed that the chattels which it had sold to the appellees passed to it as parts of the leasehold when it elected to purchase the same upon the terms stated in the agreement. Thereupon the appellees | tion that made these chattels appurtenant to brought this replevin for the carrousel and the leasehold, or made them fixtures to the its appurtenances, and judgment, for want of a sufficient affidavit of defense, was entered against the defendant on the ground that the carrousel which it had sold to the plaintiffs had not become appurtenant to the leasehold within the meaning of the clause in the agreement giving the lessor the, right to repurchase. [1] The contract or agreement between the appellant and appellees is free from all ambiguity and was therefore for the interpretation of the court below. By the intention of the parties to it, as expressed in it, both are bound; quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est. real estate, so that the title thereto would pass to the defendant and it could hold them as against the plaintiffs." In the face of its plain agreement with the appellees, the appel lant unlawfully took possession of their property, for the recovery of which this writ of replevin was issued and the judgment for want of a sufficient affidavit of defense is affirmed. 1913.) 1. TRUSTS (§ 77*)-RESULTING TRUSTS-SUBSEQUENT PAYMENT. [2] Two specific matters are the subjects of the agreement; the one the leasing of the building to the appellees, the other the abA resulting trust cannot arise from a paysolute sale to them of the carrousel. Im-ment of purchase money subsequent to the acmediately after the clause leasing the build-quisition of an equitable title in the land by the ing this follows: "The lessor hereby agrees to sell to the lessees, and the lessees agree to buy from the lessor, the carrousel with all its appurtenances now contained in said casino, and to replace it with another as below mentioned, and the lessees agree to pay for the same the sum of thirty-five hundred dollars ($3,500)." Then follows: "The carrousel to be the property of the lessor until the full amount is paid." After the full amount of the purchase money for the carrousel was paid, it became the unquestioned property of the appellees, and, having become so, the lessors gave them permission to remove it from the demised premises at the end of the term. Why such permission, if it was the intention of the parties that the carrousel should form a part of the leasehold, for if, as appellant contends, it did form a part of the same, it would have been a fixture, which would have become the property of the lessor at the end of the term. Again, why the clause providing that the new carrousel should not be removed during the term without the written consent of the lessor? This would not have been inserted if it was the intention of the parties to the agreement that the carrousel was to be a part of the leasehold. This clause was, in all probability, inserted for the purpose of enabling the lessor to hold the carrousel for any unpaid rent that might accrue during the term. It is needless to say anything further in vindication of the judgment of the court below, unless it be to repeat the following from its opinion directing judgment to be entered against the defendant: "Without going into any extended discussion, we are clearly of the opinion that, when the plaintiffs paid for the old carrousel, it became their property; and that when they bought, paid for, and installed the new carrousel the title thereto remained in them; and that there is no rule of law or construc alleged trustee. Dig. § 109; Dec. Dig. § 77.*] [Ed. Note.-For other cases, see Trusts, Cent. 2. TRIAL (§ 11*)-TRANSFER OF CAUSE-EQUITY TO LAW. Where, on a bill in equity to establish a resulting trust in land because of a payment made for the stock of a proposed corporation decides against the existence of the trust, plainabout to be formed to buy the land, the court tiff's remedy is a suit at law for the stock.or the return of his money, and under the express the court will certify the case to the law side. provisions of Act June 7, 1907 (P. L. 440) § 2, [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 28-30; Dec. Dig. § 11.*] Appeal from Court of Common Pleas, Bucks County. Bill by D. Paul Musselman against John B. Myers and others. From a decree sustaining a demurrer to the bill and certifying the case to the law side of the court, plaintiff appeals. Affirmed. Bill in equity to establish a resulting trust in realty and for a conveyance. Defendants filed a demurrer. Ryan, P. J., filed the following opinion in the court of common pleas: "The plaintiff avers in his bill that on or about February 22, 1911, he agreed with John B. Myers, one of the defendants, to subscribe the sum of $2,500 to the capital stock of a proposed corporation, which was about to be formed with a capital of $20,000 for the purpose of purchasing the real estate described in the bill; that on February 24, 1911, at the direction of Myers, plaintiff paid the amount of his said subscription to one Norman S. Sherwood as the agent and for the account of Myers; that at the said time Myers 'was under agreement with the Real Estate Trust Company, Sallie S. Houston, Samuel Frederick Houston, and Edgar Dudley Faries, trustees under the last will and 1 net v. Dougherty, 32 Pa. 371. See, also, Nixon's Appeal, 63 Pa. 279; Cross' Appeal, 97 Pa. 471; Salter v. Bird, 103 Pa. 436; McCloskey v. McCloskey, 205 Pa. 491, 55 Atl. 180. testament of Henry H. Houston, deceased, | of a trust, as all the authorities show.' Bardefendants above named, who were then the owners and are still the owners of record of the said land for the purchase thereof and had paid them on account of said purchase about the sum of $500'; that the purchase price named in the said agreement was $9,600; that Myers completed the purchase of the land on March 3, 1911, by paying to the said trustees the further sum of $2,700 (which included the sum of $2,500 received from the plaintiff) and having executed and delivered to them, by George C. Fry, one of the defendants, who acted in the transaction as a straw man for Myers, a purchase money mortgage for $6,400; that said Fry also executed a deed for said land to said Myers; and that the said deeds and said mortgage remain in the possession of said trustees at the request of said Myers and have not been recorded. "The plaintiff avers that upon these facts a resulting trust has arisen in his favor and prays for equitable relief. The defendant Myers has filed a demurrer inter alia denying the jurisdiction of a court in equity and asking that the court determine this issue in limine before any proceedings had on the merits of the case. The question of jurisdiction is thus properly raised under the act of June 7, 1907 (P. L. 440), entitled 'An act in relation to equitable proceedings wherein it is, or might have been, alleged that there was an adequate remedy at law.' It provides inter alia that if a demurrer or answer be filed, averring that the suit should have been brought at law, that issue shall be decided in limine, before a hearing of the cause upon the merits.' [1] "To entitle the plaintiff to the equitable relief for which he prays it must clearly appear that a resulting trust has arisen in his favor in the purchase of the real estate by Myers. Plaintiff contends that such a trust arises by implication from the appropriation by Myers of plaintiff's subscription in part payment of the purchase price of the land. The bill avers in the third paragraph thereof that 'at said time' (that is, at the time of the receipt of the sum of $2,500 by Sherwood, the agent of Myers for the purpose) Myers was 'under agreement' with the owners of the land to purchase it and had already paid them about $500 on account of the transaction. It appears, therefore, that Myers had acquired an equitable interest in the land before the receipt of the plaintiff's money, and that the said subscription was employed only in making a subsequent payment on account of the price. No resulting trust could arise in favor of the plaintiff under these circumstances. 'A resulting trust is raised only from fraud in obtaining the title, or from payment of the purchase money when the title is acquired. Payment of the purchase money subsequently "The amount of the plaintiff's subscription was not in the hands of Myers at the time he acquired his inceptive equitable interest in the land, which was the inception of the title to it, by the payment of the $500 hand money, nor does it appear from the averments of the bill that at that time Myers expected to receive it and relied upon it for funds with which to make the additional cash payment which he afterward made upon account of the purchase price. This case is therefore distinguishable from the case of McLaughlin v. Fulton, 104 Pa. 161, cited and relied upon by the plaintiff. In that case a son, having in his hands or under his control money belonging to his mother, purchased a farm, paying $100 of his money as earnest of the bargain, but at the same time relying upon the funds of his mother for the balance of the purchase money and afterwards actually using her money in making payment of the same. Under those facts the court said that the purchaser would 'not be permitted to defeat the trust by showing he had acquired a merely inceptive equitable interest by payment of an inconsiderable amount of his own money at the purchase.' In that case Justice Clark recognized the doctrine declared in Barnet v. Dougherty and said: 'It is certainly true that a resulting trust in lands must arise, if at all, at the inception of the title, either through fraud in the acquisition of it or through payment of the purchase money by which it is obtained.' "In Engle v. Weidner, 1 Luz. Leg. Reg. 769, the court says: 'It is fraud in the purchase, not after, and payment at, and not after, which makes the holder of the title a trustee. A subsequent payment, however clearly shown, will not answer the requirements of the law. Sharswood, J., in Nixon's Appeal, 63 Pa. 279.' [2] "The plaintiff appears to be entitled to have the stock for which he subscribed or the return of his money. We think that his remedy is a suit at law. The act of June 7, 1907, supra, in section 2 provides inter alia: 'If the court shall decide that the suit should have been brought at law, it shall certify the cause to the law side of the court, at the costs of the plaintiff,' etc. Accordingly we enter the following decree: And now, March 25, 1912, this cause came on to be heard at this term, and was argued by counsel, and upon consideration thereof it is ordered, adjudged, and decreed that this cause be certified to the law side of the court, at the costs of the plaintiff, in accordance with the provisions of the act of June Argued before FELL, C. J., and BROWN, ELKIN, MOSCHZISKER, J. The plaintiff was a STEWART, and MOSCHZIS- member of a copartnership with the defendant and two others, in which each had fur PER CURIAM. The decree is affirmed for the reasons stated in the opinion of the learned president judge of the common pleas. R. W. Archbald, Jr., and John C. Swart-nished a share of the capital; the plaintiff ley, both of Philadelphia, for appellant. desired to withdraw and prepared a written Yerkes, Ross & Ross, of Philadelphia, for statement showing the amounts contributed by appellees Real Estate Trust Co. and others. him; the other partners agreed to the corB. F. Geary, of Lock Haven, and Grim & rectness of the sum claimed and gave him Grim, of Perkasie, for other appellees. permission to retire; in order to carry out the understanding between them, the plaintiff prepared a series of notes drawn to his order and payable at successive dates, covering a period of 15 months; these notes were signed by one of the remaining partners and indorsed by the other two; they were not paid at maturity and the plaintiff instituted a suit thereon; after an affidavit March 17, of defense had been filed by one of the indorsers, the plaintiff brought the present proceedings on an alleged promise to pay aside from the notes; he recovered a verdict for the full amount of his claim, on which judgment was entered. The action was originally against all the partners, but only one defendant was served, and the jury was sworn as to him alone; this defendant has appealed. (240 Pa. 22) ALEXANDER v. RIGHTER. (Supreme Court of Pennsylvania. 1913.) PAROL CONTEMPO 1. EVIDENCE (§ 444*) 2. EVIDENCE (§ 439*)-PAROL-CONTRACTS. The rule against the admission of parol evidence to vary a written contract has no application in an action wherein plaintiff relies on a promise aside from the written contract. [Ed. Note. For other cases, see Evidence, Dec. Dig. § 439.*] 3. CONTRACTS (§ 333*)-PLEADING. The plaintiff's contention was that at the time of the dissolution of the firm his copartners had agreed to pay him for his interest in the business the amount of his original contribution as shown by the written statement prepared by him, and that the notes were given merely as collateral to this promise to pay. The defense contended for at the trial was a denial that there had ever been a settlement of the firm's accounts or an actual valuation of the plaintiff's interest, a denial of any admission of indebtedness to the plaintiff, or any engagement to pay aside from the promissory notes, and an assertion that the plaintiff proposed to his copartners that he would retire from the firm upon the delivery to him of a series of promissory notes totaling the amount of his original contribution, and that, when this proposition was accepted and the notes delivered, it was further expressly understood and agreed that the amount to be returned to the plaintiff should be payable only out of [Ed. Note. For other cases, see Witnesses, future profits earned by the business. Cent. Dig. 88 924, 926, 967-975; Dec. Dig. other words, the contention of the defendant 275.*] Plaintiff's pleading in an action on an oral contract should clearly show whether he relies on an express or an implied promise. [Ed. Note.-For other cases, see Contracts, Cent. Dig. 88 1196, 1640-1657, 1659; Dec. Dig. § 333.*] 4. WITNESSES (§ 275*) - CROSS-EXAMINATION OF PARTY-ACTION ON CONTRACT. In an action on a parol promise to pay, it was error to refuse to permit plaintiff to be cross-examined as to his reasons for bringing a prior suit on notes which represented the same debt, instead of suing in the first instance on the parol promise. Appeal from Court of Common Pleas, Delaware County. Action by H. Warren Alexander, Jr., against George W. Righter and others. From a judgment for plaintiff, the defendant named appeals. Reversed. Argued before FELL, C. J., and BROWN, ELKIN, STEWART, and MOSCHZISKER, JJ. Joseph Hill Brinton and J. Claude Bedford, both of Philadelphia, for appellant. W. Roger Fronefield, of Media, and Horace M. Rumsey, of Philadelphia, for appellee. In was that neither he nor the other partners at any time prior to the dissolution of the firm owed or acknowledged that they owed the plaintiff any sum of money; that they merely agreed, so far as they could, to permit him to retire from the business and thereby avoid the possibility of future losses; and that the promissory notes were given as a method of carrying out this agreement, upon the understanding between the parties and on the agreement of the plaintiff that they were payable exclusively out of future profits to be earned by the business. [1] A careful reading of the record returned to this court, including the testimony, ment is not sued upon, but comes collaterally into a case, the rule against the admission of parol evidence to vary a written contract has no control. Curtin v. People's Natural Gas Co., 233 Pa. 397, 82 Atl. 503. Also see 17 Cyc. 741, and 21 Am. & Eng. Ency. of Law 1087. [3] Since this record must go back to the court below, we suggest that the plaintiff failed to make it plain whether he relied upon an express or an implied promise; so far as the defendant was permitted at trial, he made his case apparent, and the plaintiff should have done the same. shows that from the beginning to the end of the trial counsel endeavored in every way within his power to make plain the case here outlined, and justifies his assertion that the presiding judge apparently failed to appreciate the exact nature of the defense and in consequence never placed the defendant's case squarely before the jury. Although the learned judge wavered during the trial he finally ruled definitely that, the suit being upon an alleged independent promise, it was immaterial what was said concerning the payment of the notes out of a particular fund, and that all testimony in that connection was irrelevant; and he charged on the [4] One other matter requires notice, facts that the defendant had originally ex- namely, the refusal to allow an inquiry into pressly or impliedly promised to pay or had the prior suit on the notes. Notwithstanding admitted an indebtedness to the plaintiff the fact that the other action was not in itaside from the notes, and that the defense self inconsistent with the present one, neverwas an endeavor to set up a novation or sub-theless the defendant was entitled to crossstitution of the notes for this original in- examine the plaintiff concerning his reasons debtedness. All this was error. As previous- for instituting a suit on the notes instead of ly stated, the defendant did not admit as a setting up in the first instance the alleged fact any original indebtedness or independent independent promise to pay, if he considered promise to pay, and the theory of novation such a promise extant. While we have not did not enter into his defense. As stated in deemed it essential to pass specifically upon the charge, the plaintiff himself urged that each of the assignments, we have endeavored the promise sued upon was "evidenced by the to point out the material errors therein callgiving of these notes," yet testimony which ed to our attention and to indicate the course would tend to explain away this apparent that should be followed at the next trial. evidence was refused. The defendant should The judgment is reversed with a venire have been permitted to introduce all compe- facias de novo. tent testimony which tended to show the probabilities of the defense he desired to present. The giving of the notes was a part of the transaction on the occasion of the plaintiff's retirement from the firm, and all conversa tions and agreements between the parties at that time formed the res gesta of the matter under investigation. Miller v. Fichthorn, 31 'Pa. 252. The mere fact that the suit was Where it is doubtful whether false statenot upon the notes could not deprive the ap-ments in an application for a life policy are pellant of his real defense, viz., that the plaintiff had agreed to look to a special fund for the return of his contribution to the partnership and that any promise to pay, implied or otherwise, was coupled with that agreement. We have ruled more than once that, even where there is a written unconditional promise to pay in a suit thereon between the original parties, one may show a contemporaneous agreement that the prom-time prior to the application, and whom he had isee would look to a special fund for the payment, where such agreement constituted a part of the consideration of the written contract or operated as an inducement for entering into it. Greenawalt v. Kohne, 85 Pa. 369; Keough v. Leslie, 92 Pa. 424; Cake v. Pottsville Bank, 116 Pa. 264, 9 Atl. 302, 2 Am. St. Rep. 600; Clinch Valley Coal Iron Co. v. Willing, 180 Pa. 165, 36 Atl. 737, 57 Am. St. Rep. 626; Keller v. Cohen, 217 Pa. 522, 66 Atl. 862; Gandy v. Weckerly, 220 Pa. 285, 69 Atl. 858, 18 L. R. A. (N. S.) 434, 123 Am. St. Rep. 691. Also see 17 Cyc. 717. [2] Furthermore, where the written engage (240 Pa. 332) RIGBY v. METROPOLITAN LIFE INS. CO. (Supreme Court of Pennsylvania. April 21, 1913.) 1. INSURANCE (§ 668*) - LIFE INSURANCE MISSTATEMENTS IN APPLICATION-MATERIALITY-QUESTIONS FOR JURY. material, the question is for the jury, but if they are manifestly material, the court should rule them to be material as a matter of law. [Ed. Note.-For other cases, see Insurance, Cent. Dig. 88 1556, 1732-1770; Dec. Dig. 8 668.*] 2. INSURANCE (§ 292*)-LIFE INSURANCE-AP PLICATION-MISSTATEMENT OF FACTS. Where, in an action on a life policy, applicant had omitted to give the name of a physician who had attended him within a short consulted for a serious disorder, possibly connected with the illness which caused his death, the court should have instructed, as a matter of law, that the false statements were material and the policy void, under provisions to that effect, if the statements in the application were untrue. [Ed. Note.-For other cases, see Insurance, Cent. Dig. 88 691, 692; Dec. Dig. § 292.*] Appeal from Court of Common Pleas, Delaware County. Action by Bertha S. Rigby against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed. |