Gibson v. Union Rolling Mill Co.

A misconception which will avoid a contract must be a mutual one, and of a fact which entered into the contemplation of both parties as a condition of their assent.

WRIT of error to the court of common pleas of Alleghany county. This was an action of assumpsit, instituted against James Gibson, and founded on what are popularly called promissory notes for the delivery of pig metal, given by Gibson, jointly and severally with Thompson M’Kean, to the plaintiffs belovv. The notes were four in number, and dated the 10th of April 1825, and were respectively of the following amount, viz. 1st. Note at 9 months for 20 tons, with a credit on the 19th of May 1827, of 13 tons 18 cwt; 2d. Note at 12 months for 20 tons ; 3d. Note at 15 months for 19 tons ; 4th. Note at 18 months for 19 tons. The defendant below pleaded payment, with leave to give fraud, want of consideration, and other special matters in evidence. On the trial of the cause, the plaintiffs below gave the notes in evidence, and gave evidence showing the value of pig metal at the several times at which the same became deliverable according to the terms of the contract. The defendant below then offered to prove, that the judgments held by the plaintiffs below against S. K. Page, which formed the consideration of the notes, were actually of no value; that at the time of giving these notes, and for a considerable time before, S. K. Page, James Gibson, Thompson M’Kean and M. B. Lowrie, were partners, carrying on the Cool Spring Furnace in Fayette county; that Page, one of the partners, had become very much embarrassed; that shortly previous to the date of these notes, Page gave judgments to the plaintiffs below, and to Henry Baldwin, one of the said plaintiffs ; that executions were issued on said judgments; that Lowrie and Page lived in Pittsburgh, and M’Kean and Gibson in Uniontown, Fayette county; that M’Kean and Gibson left Uniontown for Pittsburgh on the 3d of April 1826, and did not return until after the 10th of April; that on the 4th of April, the store of M’Kean, Gibson and Company was shut .up by the sheriff under the executions of the plaintiffs below, and all the personal property of the firm levied on ; that under these circumstances the plaintiffs below, and M’Kean, Gibson, Lowrie and Page, met for the purpose of making an arrangement of the matters; that Page was a party to the arrangements entered into at the meeting, and was consulted by both parties as to the extent of his interest in the real estate belonging to the Cool Spring Furnace, and represented to both parties that there was nothing due from him upon his articles of agreement with Fitzsimmons, but that he had a clear title to one-third of the Furnace lands; and, in consideration that these notes should be given to satisfy the judgments of Baldwin and the Union Rolling Mill Company, that he would convey or procure from Fitzsimmons a conveyance of one-third of the Furnace and lands attached thereto ; that nothing was said at the time of the arrangement about the mortgage he bad given to Fitzsimmons, and none of the parties, except Page, knew, or could know, of the recording of the same; that in consideration of the foregoing arrangement, the notes were given, together with two other notes of the same date (one payable in ninety days for 510 dollars, the other for twenty tons of pig metal), which were paid; and, that at the same time Baldwin and the Union Rolling Mill Company assigned their judgments against Page to M. B. Lowrie, “ under and subject to the following conditions “ That it shall be and remain a lien on both the real and personal property now bound by it, and the execution issued in consequence of it, and subject to my control and directions ; but no property to be removed or sold, or any interference with the sale or disposition or management of the personal property until a failure.on the part of Thompson M’Kean, James Gibson or Matthew B. Lowrie to comply with the engagements this day entered into by them with the Union Rolling Mill Company. On compliance with these engagements, this judgment to be for such use and purposes as the said Matthew B. Lowrie shall direct and authorize, otherwise to be and remain for my use as if this agreement had not been made. “ Henry Baldwin.” The judgment held by the Union Rolling Mill Company against Page was assigned on the same conditions. The defendant below further offered to show, by the records of Fayette county, that there were other judgments against the said Page, of the same date with those of the plaintiffs below, and that in fact Page had no interest whatever in the real property of the Furnace, having by sundry deeds of conveyance, before that time, conveyed away to W. Fitzsimmons, Thomas and James Taylor, and others, all the interest which he ever had, and a good deal more, and having, on the 31st of March preceding, given a mortgage to Fitzsimmons on one half of said property (which was more than he owned), which was recorded on the 5th of April 1826, and which mortgage remained unsatisfied. The defendant below also offered to prove by the deposition of the recorder of Fayette county, that the copies of the records offered in evidence were all the papers relative to the Cool Spring Furnace lands to which Page was a party; and that the money already paid by the defendants below exceeded any interest which Page had in the personal-property of the firm ; and that shortly after this arrangement Page became insolvent. The whole of this testimony was objected to by the plaintiffs below. The objection was sustained, and the testimony rejected by the Gourt, on the following grounds : “ the standing of Page ought to have been known by his co-partners. If they were deceived in this particular it was their own fault, not that of the plaintiffs. They voluntarily agreed on their part to pay Page’s debt, provided the plaintiffs would suspend their executions. It is a valid agreement to pay the debt of another, and they'took the risk on themselves. They entered into the arrangement without being deceived by the plaintiffs. That their store was shut up by executive process is immaterial, since they had their remedy by action of trespass. They chose to abandon their legal rights, and to enter into a contract to pay Page’s debt. Shall they now set up as a. defence, that they were mistaken as to the value of Page’s property, where there is not the slightest imputation of fraud, or where there is no mistake arising from imposition on the part of the plaintiffs 1” To the rejection of the testimony the defendant below excepted. Verdict and judgment for plaintiffs below, for the full amount of their claim. The error assigned was, that the court erred in rejecting the evidence offered by the defendant below, as contained in the bill of exceptions.