Templeton v. Shakley

1. Execution, in pursuance of a judgment entered on warrant of attorney, may issue without scire facias; it issues, however, at the peril of the plaintiff, and the court may, at the instance of the parties, direct an issue on a scire facias either before or after execution issued. 2. A bond, which contained a power of attorney to confess judgment, was conditioned for the payment of $10,000; said sum to be released on delivery of 3,500 barrels of oil “when called for at any time within six months.” About a year after the bond was due judgment was entered thereon, and subsequently a scire facias, treated as for the liquidation ■ of damages, for‘a breach of the bond, was issued. On the trial the defendants offered to prove that a demand was made for the oil pursuant to the contract; it was objected that evidence of such demand was • • irrelevant and incompetent, if the same were made prior to the entry of judgment on the bond. Held, that the evidence was admissible whether the demand was made before or after the entry of the judgment. The judgment was for the penalty merely, and the entry thereof adjudicated nothing as to the extent of the real debt. For the ascertainment of the latter, the value of the oil on the date of the demand, was important. 3. An exemplification of the record of the judgment was entered in another county and attachment executions issuecl thereon, under which were attached certain money and oil belonging to B., surety on the bond; and, subsequently, an alias attachment was levied on money of A., the principal. Afterwards A. and B. met the plaintiffs (obligees in the bond) at a lawyer’s office, where certain papers were signed by all the parties, to the effect that if B. would transfer to the plaintiffs his attached property, the same would be accepted as payment of 1,000 . barrels of oil, and the other attached properly (i. e., A.’s) would be released, and A. and B. should pay the remaining 2,000 barrels of oil in specified instalments. B., who was an illiterate man, afterwards claimed that these agreements were fraudulent and obtained from him by the collusion of the other parties, who represented that by transferring his attached property (which he did), he would be entirely released from further obligation under the judgment; and he also claimed that he knew nothing of the attachment of A.’s property or the release thereof by virtue of the agreements. Held, that the evidence which B. offered of this fraud was sufficient to submit to the jury. 4. The jury, having found this fraud, Held, that said agreements were eliminated from the case as far as B.’s obligation under them was concerned, but that they were binding upon the plaintiffs and upon A. 5. Under said agreements B.’s money and effects were turned over to the plaintiffs, while A.’s money was released and subsequently received by him, the amount thus diverted from the proper channel being sufficient to pay the balance due on the bond. Held, that the plaintiffs having once had the means of compelling payment from A., the principal, and having released him, B., the surety, was thereby discharged from the debt; and this although the plaintiffs may not have known of the relation of principal and surety between A. and B. at the time. Held, further, that the amount of the debt released was a material fact for the jury; and that in order to determine the sum due A. from G. (the garnishee), it was not error to submit to the jury an original contract in reference thereto between A. and C., the testimony of the parties to that contract, and the record of the proceedings on the attachment, including the answer of C. as garnishee. 6. By mistake of the court officer, the answer of 0., as garnishee, was filed as of the term and number of the attachment proceedings against B.’s garnishees, instead of the term and number of the alias writ against O. Held, that this did not affect the admissibility of the answer.

Error to tbe Court of Common Pleas of Armstrong county: Of October Term, 1884, No. 116. Scire facias brought by P. A. Templeton and J. Y. Foster against A. T. Spenee, Daniel M. Shakley and H. P. Shakley. The scire facias was in form to revive a judgment and continue the lien, but it was treated throughout the trial as a sci. fa. to liquidate damages arising from a breach in the conditions of a bond. On tbe trial, before Neale, P. J., the following facts appeared: About July 1, 1874, in consideration of tbe loan of 8,000 barrels of oil, the defendants gave the plaintiffs a bond (in form a joint and several obligation), in the penal sum of $20,000, conditioned for the payment of $10,000 within six months from date, and containing the following clause : “ The above sum to be released on tbe payment or delivery by said A. T. Spence, Daniel M. Shakley and Henry P. Shakley to said J. Y. Foster and P. A. Templeton, or their assigns, of three thousand five hundred barrels of good crude purchasable petroleum, to be delivered when called for by said Foster and Templeton, any time within six months from date hereof.” This bond was renewed several times, the last renewal being on July 8th, 1875. It contained a warrant of attorney to confess judgment, waived inquisition and exemption, and provided for the allowance of five per cent, attorney’s commissions. Foster afterwards assigned his interest in the bond to Templeton. On May 8th, 1876, judgment was entered on the bond in the Common Pleas of Armstrong county; and in February following an exemplification of this record was entered in the Common Pleas of Butler county. On July 12th, 1876, defendants paid 500 barrels of oil. . Attachments execution were issued on the exemplification of the record in Butler county to No. 240 March Term, 1877, and money of D. M. Shakley on deposit in the Argyle Savings Bank, supposed to be $2,329, and 191 barrels of oil in the hands of the United Pipe Line, were attached. Subsequently an alias attachment issued to No. 138, June Term, 1877, under which was levied and seized certain money of A. T. Spence in the hands of J. B. Hill, being purchase money for an oil well, amounting to from $2,700 to $3,100. On April 2d, 1877, after the service of said attachments, D. M. Shakley, A. T. Spence and Templeton and Foster met in East Brady, Pa., where an agreement was entered into, which was reduced to writing the same evening in the office of John Gilpin, an attorney in Kittanning, the parties havinggone there for the .purpose. Two papers were drawn by Mr. Gilpin and signed by the parties mentioned. One set out that Spence and Shakley should give to Templeton and Foster orders upon the bank for the $2,329, and upon the United Pipe Line for the 191 barrels of oil, and that when said orders were honored Tem-pleton and Foster should release from levy and attachment all other property and money belonging to Spence and Shak-ley, which had been seized (including Spence’s money in Hill’s hands), and that by reason of the payment of said orders Spence and Shakley should be credited on the judgment as if they had paid 1,000 barrels of oil. The other writing recited the payment of said orders and set out that the residue of the judgment should stand as security for the payment of the 2,000 barrels of oil still due. Shakley gave his cheek on the Argyle Bank for the $2,329 and an order on the Pipe Line for 191 barrels of oil. Upon presentation of these, about $635 less was realized than was expected, and Templeton and Foster refused to release the money in Hill’s hands from attachment until this sum was arranged for between the parties, which was afterwards done. - On June 29th, 1877, a letter was written addressed to Tem-pleton and Foster, and signed by A. T. Spence and D. M. Shakley, stating that the first instalment on the 2,000 barrels of oil would be due in a few days, and that as the latter were unable to pay it they desired an extension of time, and would continue bound by the previous agreements and judgment. This scire facias was issued March 9th, 1881. Henry P. Shakley having been declared an habitual drunkard previous to July 8th, 1875, the judgment and sci. fa. wore stricken off as to him; and on March 12th, 1884, jndgment by default was taken against A. T. Spence. The remaining defendant, 1). M. Shakley, contended that, he was merely surety on the bond given in July, 1874, A. T. Spence being the principal, and the only one receiving any benefit therefrom; that on December 23d, 1875, a demand was made by Templeton on Spence for the oil mentioned in the bond, which Spence did not comply with, thus converting the oil into money at the market value thereof at said date; that the agreements drawn in Gilpin’s office and the letter following them were frauds upon him (Shakley)' that he could only read writing with great difficulty, and therefore did not read the agreements, nor were they read in his presence ; Foster explained them to him and told him that if he would sign the papers and turn over his oil and money attached, that his property would be entirely released from further liability on the judgment under the bond; that he knew nothing of the promise contained in said agreements to pay 2.000 barrels more oil, nor did he know anything of the attachment of Spence’s money in Hill’s hands, and the promised release thereof under the agreements. The letter also, he claimed, was procured from him in the same way, Foster having written it and directed Spence to copy it and get Shakley’s signature, which he did by misrepresenting its contents. Shakley further contended that in pursuance of the agreements of April 2d, 1877, and by collusion of the parties, the money, or part of it, belonging to Spence, the principal, and attached in Hill’s hands, was released from the attachment without his (Shakley’s) knowledge or consent, thus discharging him as surety to the extent of the sum released. Defendant’s counsel proposed to show by a certain witness that a demand was made on A. T. Spence, by the plaintiffs, for the oil mentioned in the bond. Objected, that if the demand was prior to May 8th, 187G (the date judgment was entered on the bond), the evidence was incompetent and irrelevant. Objection overruled and testimony to the effect that such demand was made December 23d, 1875 — admitted. (First and second assignments of error.) Defendants’ counsel proposed to show that Shakley had no knowledge of the above demand at the time, nor of the attachment of the fund in Hill’s hands, until after he signed the agreements in Mr. Gilpin’s office. Objected to. Objection overruled and evidence admitted. (Seventh assignment of error.) Defendants called A. T. Spence to show that in pursuance of a direction given him by Foster, he copied the letter of June 29th, 1877, and procured Shakley’s signature thereto, without reading the letter to him, and by making explanations inconsistent with the contents thereof. Objected to as irrelevant and incompetent. Objection overruled and evidence admitted. (Eighth assignment of error.) Defendants’ counsel asked Shakley, “Did jmu read that letter at the time 3rou signed? ” Objected to on same grounds. Objection overruled. Answer. “No, sir.” (Ninth assignment of error.) In order to show the amount of money Hill had in his hands due A. T. Spence, and also to show that there was an arrangement between these parties by which this sum, or a large part of it, was turned over to Spence, in derogation of the rights of Shakley as surety, the defendants made the following offers of evidence: (1.) Answer of J. B. Hill to the attachment execution at No. 188 of June Term, 1877, which by mistake was placed among the records on file at No. 240 of March Term, ’77, another execution attachment from the original judgment of Foster and Templeton, against Spence and Shakley and their garnishees, viz. Answer. “ At the time of the service of the writ in this case there was money in my hands of the defendant, A. T. Spence, amounting to about fifteen hundred dollars, but about the time the above writ was issued I made an arrangement with J. Y. Foster, one of the plaintiffs, by the terms of which I was to answer in this case to plaintiff for the sum of one hundred and thirty-five dollars and no more, which sum I have retained and now have. No money has since come into my hands nor has accrued to said defendants.” Objected to —objection overruled and answer admitted. (Third assignment of error). (2.) A copy of'a contract and assignment signed by one T. T. Spence and by Hill, dated March 27th, 1877, setting out the assignment of $3,100 to A. T. Spence. Objected to. —Objection overruled and paper admitted. (Fourth assignment of error). (3.) Evidence to show that the fund in Hill’s hands was absorbed in a private settlement between him and Spence. Objected to. — Objection overruled and evidence admitted. (Sixth assignment of error). Plaintiffs asked the court to charge— (5.) “ That if the jury find from the evidence that there was a valid agreement in writing signed bv tbe defendant, Daniel M. Shakley and A. T. Spence, who were sued as co-defendants in this action, and Foster and Templeton, the plaintiffs, and executed on the 2d day of April, 1877, fixing the amount of oil due at that date, then such written agreement is the better evidence and should control the jury in finding the amount of the defendants’ liability to the plaintiffs at that time, and also at what time and in what quantities the amount so found was to be delivered to the plaintiffs.” Answer. “ Affirmed, unless the jury are satisfied from the evidence that the signatures and execution of the papers were procured by fraud, misrepresentation or other illegal act.” (Twelfth assignment of error). (7.) “That the paper dated June 29th, 1877, and signed by A. T. Spence and Daniel M. Shakley, is the paper of the defendant and estops him from denying his liability to the plaintiffs for the whole amount of oil secured by the original judgment and fixed by and stipulated in the agreement of April 2d, 1877, except so much as has been actually paid since the date of the last mentioned agreement.” Defused.— (Thirteenth assignment of error). (8.) “ That the proof given by tbe defendant in support of an alleged release of moneys attached in tbe hands of James B. Hill is too indefinite and unsatisfactory in law to enable them to infer a release by the plaintiff of the sum attached in the bands of Hill, and especially if contradicted by the plaintiffs; and if the jury believe the evidenco on the part of plaintiffs as to the alleged settlement and arrangement made on the 2d April, 1877, then they are to disregard all the proceedings under said attachment.” Defused. — (Fourteenth assignment of error). The defendant submitted, inter alia, tbe following points: (1). “ The court must construe the bond on which judgment is entered and say to the jury that it is a bond with a penalty or in a penal sum of ten thousand dollars, conditioned for the delivery of three thousand five hundred barrels of oil on demand. That the amount named in the bond is a penalty and not liquidated damages.” Affirmed. — (Fifteenth assignment of error). (2.) “That if the jury believe a demand was made of tbe oil from Spence by Templeton on the 23d of December, 1875, that converted the oil into money at the market price of oil at the time of the demand which the evidence shows to be one dollar and forty cents per barrel.” Affirmed. — (Sixteenth assignment of error). (8.) “ That it is the duty of the jury to apply all the payments to the price or value of the oil converted on the 2hd of December, 1875.” “Affirmed if the jury find there was a conversion.” ("Seventeenth assignment of error). (4.) “That if the jury find that A. T. Spence is principal and Daniel M. Shakley his surety, that the plaintiffs attached a debt owing to the principal in the hands of J. B. Hill, and without the consent or knowledge of the surety, released the same or any portion of it, or consented that all or any part of it should be paid to the principal debtor, by J. B. Hill, and that it or any portion of it was paid by Hill to Spence; to that extent the surety is discharged from his liability on the bond and judgment.” Affirmed. — (Eighteenth assignment of error). (7.) “If the jury find from the evidence that the contracts of the 2d April, 1877, and letter of 29th June, 1877, were obtained from D. M. Shakley by the plaintiffs concealing the facts that a previous demand had been made for the oil and its consequent conversion into money, and if the fact that an attachment had been issued against J. B. Hill, and that such facts were known to the plaintiffs, or one of them, and unknown to the defendant and of his rights, in that event the contracts as to defendant Shakley are fraudulent and void, and he would not be bound thereby.” Affirmed. — (Twenty-first assignment of error.) In the general charge the court instructed the jury, inter alia, as follows: “If on the other hand under all the evidence you find that Templeton did on the 23d of December, 1875, make an actual demand of the oil, then j-ou will go further and ascertain what was the market value of oil on that daju You have sound evidence that the price was $1.40 per barrel, which would be $4,900, on the 23d of December, ’75, hence, if you are satisfied that a demand was made — actually made — and there was nothing further in the case, the verdict as of that date would be $4,900 . If you should reach the conclusion that neither of these theories is correct and that a demand has never yet been made, we would in pursuance of one of the points of the defendant instruct you that there could be no recovery upon that ground in this case, but that is entirely for you.” (Tenth and eleventh assignments of error.) Verdict for the defendant and judgment thereon; whereupon the plaintiffs took this writ assigning for error the rejection and admission of evidence and the answers to points, as above set out.