Superior Court of Pennsylvania, 1900

Peters v. Whalen

Peters v. Whalen
Superior Court of Pennsylvania · Decided November 19, 1900 · Beaver, Orlady, Porter, Rice
15 Pa. Super. 333; 1900 Pa. Super. LEXIS 350

Peters v. Whalen

Opinion of the Court

Opinion by

Beaver, J.,

The appellant’s first specification of error relates to the rejection of a written agreement which purports in its text to be “between John Whalen and Mary, his wife, of Harrowgate, twenty-fifth ward, Philadelphia, as party of first part, and Archibald Neill, of 179 Berks street, Philadelphia, as principal, and the Industrial Trust, Title & Savings Company, of Philar delphia, as security, as party of the second part.” There is no definite date to this agreement nor was it signed or sealed by the Industrial Trust, Title & Savings Company. It was twice offered as evidence, twice objected to and the objection both times sustained. Which of these rulings of the court below is assigned for error does not distinctly appear in the appellant’s first specification of error.

This assignment might be properly disregarded as in violation of our Rule 17 which requires that “ when the error assigned is to the admission or rejection of evidence, the assignments must quote the full substance of the bill of exceptions or copy the bill in immediate connection with the assignment.” Assuming, however, that the assignment relates to the last offer which was made at the close of the defendants’ testimony, and overlooking the grave defect in the assignment itself, we can see no error in the ruling of the court below. Not only is there a total failure to lay the ground for the admission of the unsigned paper by reason of fraud, accident or mistake, but the testimony of the officer of the trust company clearly shows that it was never intended that the trust company should become the surety of Neill, the contractor, to the appellant. The contract of suret3,ship on the part of the trust company was to a building association from which money had been borrowed by the appellant for the purpose of erecting her house, and in pursuance of that contract, a title polic3r was issued to the building and loan association by the trust company. The officer of the trust company testified that it was never contemplated in any way that the paper offered in evidence was to be signed or sealed by his company, and that it never had “ any contract of any sort, kind or description ” with the appellant.

The appellant was called as a witness. She states in her testimony that she had heard the testimony of the representa*337tive of the trust company and does not in any way deny or controvert it. She does not allege any agreement on the part of the trust company’to sign the paper offered in evidence or any undertaking on its part, verbal or otherwise, to become the surety of Neill, the contractor, to her. The attorney of the building association was called as a witness, who says: “ I represented both parties. I first represented the building association, and through the building association came in contact with Mrs. Whalen.” His testimony is very vague and indefinite. It may be summed up in his answer to the question, “ Why was this agreement left with the trust company ? ” which was: “ I left everything with the trust company — money and agreement — and was to get a title policy for the building association and the agreement afterwards. It was morning and I was anxious to get down town, and I left the whole thing with them. I got the title policy afterwards and the agreement I left there. They were to sign it. It was left there with them to sign it. They were to be security for Neill and it was left there. I left the money there. I paid $2,400 I had from the building association, and $50.00 Mrs. Whalen took out of her pocket and paid, and I think she also paid at that time the $86.00 that the company got for its services in securing against liens for the completion of the building.” There is no explanation of any kind as to his failure to secure the agreement at the time the title policy was delivered. It is difficult to account for this failure, if the signing of the agreement was part of the contract of suretyship. The evidence, taken as a whole, falls far short of the rule which requires it to be clear, precise and indubitable in order to reform a written agreement on the ground of fraud, accident or mistake. The testimony offered being properly rejected, it followed as a matter of course that the verdict should be for the plaintiff upon the mechanic’s lien, as to the regularity of which there was no question, and as the direction of the court to find for the plaintiff constitutes the only other assignment of error, the judgment is affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.