Opinion
March 23, 1949.
April 11, 1949.
Statute of limitations — Contracts — Reasonable time for performance — Agreement to sell house and pay over proceeds — Evidence — Self-serving declarations — Letters from plaintiff's counsel to defendant.
In a suit in assumpsit on an account stated, it was Held, in the circumstances, that (1) letters written by plaintiff's attorney to defendant relating to the claim had been properly admitted in evidence and (2) the issue as to the statute of limitations had been properly submitted to the jury.
Argued March 23, 1949.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON and STEARNE, JJ.
Appeal, No. 85, March T., 1949, from judgment of Common Pleas, Allegheny Co., Jan. T., 1945, No. 2414, in case of Charles Chittenholm v. S.E. Giffin, otherwise known as S. Earl Giffin et ux. Judgment affirmed.
Assumpsit.
The facts are stated in the opinion by KENNEDY, J., of the court below, PATTERSON, SOFFEL and KENNEDY, JJ., as follows:
This is an action in assumpsit based on a written Account Stated, dated November 23, 1932. It read as follows:
"Brucewood Drive Mt. Lebanon, Pa.,
November 23, 1932.
It is mutually agreed by the undersigned that the amount due Charley Chittenholm to this day, covering personal cash invested and wages as contractor during the construction of seven room dwelling at the above address is the total sum of — $5908.24 — and as per agreement between S.E. Giffin and Charles Chittenholm he is to be reimbursed on this basis when the aforesaid dwelling house is sold.
(Signed) S.E. GIFFIN MARY M. GIFFIN CHARLEY CHITTENHOLM."
The jury returned a verdict in favor of the plaintiff in the sum of $6701.84, being the claim of the plaintiff in the sum of $5608.24 and interest from December, 1944, totaling $1093.60. The plaintiff had allowed a credit to the defendant on the original claim of $300.00, which was paid by the defendant to the plaintiff on September 16, 1937. Defendant, by Counsel, has now filed motions for judgment n. o. v., or in lieu thereof for a new trial, and it is the disposition of these motions that is now before us.
It appeared from the evidence and the historical facts that under a certain written agreement and under seal, dated May 4, 1927, the defendant having become the owner of certain lots of ground in Mt. Lebanon Township, and plaintiff, who was a carpenter and contractor, agreed to supervise the construction of dwelling houses for the defendant on these lots and to prepare plans and specifications for same. Defendant was to pay for all labor and materials and also to pay plaintiff fifty dollars per week as wages or salary. The contract also provided that upon completion the houses were to be sold and the net profits, if any, divided equally between the parties. Only one house was erected and that was completed in March, 1928. It was not sold as agreed and the defendant and his family moved into it and are residing there at the present time. Plaintiff's contention is that during the construction he advanced monies of his own in defendant's behalf for certain labor and materials used in the structure. He was not reimbursed for these advances or was he paid the agreed sum of fifty dollars per week for supervision of the work. Defendant paid out of his own funds certain debts of the plaintiff not connected with the erection of the dwelling. Thereafter plaintiff and defendant had several meetings in order to effect a settlement of the amount due the former by the latter. The adjustment set forth, resulted in the above quoted agreement. On September 16, 1937 defendant paid the plaintiff $300.00 on account of the balance stated in the writing. He has paid the plaintiff nothing since, nor has he sold the dwelling.
This suit originally started as a Bill in Equity, filed on December 21, 1944, in which the plaintiff claimed that because the defendant insisted that since the dwelling had not been sold by the defendant that the agreement of May 4, 1927 amounted to a partnership arrangement, and, therefore, he prayed for an accounting based on the fair value of the dwelling and also for a money verdict in the sum of $5908.24 with interest, based on the account stated agreement of November 23, 1932. This equity suit was brought based on the mistaken interpretation of the contracts by plaintiff's counsel to the effect that because the dwelling house had not been sold no cause of action at law at the time rested in the plaintiff. An answer to this equity suit was filed on the merits. Following trial, the Chancellor (CHALLENER, J.) concluded that no partnership agreement had been made out but that instead of dismissing the bill certified same to the Law side of the court. The case before us was tried on the theory expressed by Judge CHALLENER in his opinion dated October 24, 1945, which reads as follows:
"The eighth paragraph of the bill of complaint sets out the only claim which plaintiff has against the defendants. It avers an account stated and fixes the amount to be paid plaintiff by defendants at $5908.24. It thus appears that the action to recover that amount with interest is not cognizable in equity. We shall not dismiss the bill but will certify the complaint to the Law side of the court in order that there be a speedy determination of the cause."
This is the second trial of the case on the Law side of the court. The first trial also resulted in a verdict in favor of the plaintiff in the sum of $5608.24 with interest from December 21, 1944. In that case the defendant's motion for n. o. v. was refused by the court en banc but a new trial was ordered for the reason that the trial court had inaccurately and inadequately charged the jury on the law of the statute of limitations, which inter alia the defendant had set up as a defense to the plaintiff's claim against him. Both parties appealed to the Supreme Court, and on November 10, 1947 the Orders of this court were both affirmed in an opinion written by Mr. Justice DREW (see Chittenholm v. Giffin, 357 Pa. 616). The evidence and the exhibits in this instant proceeding were substantially the same as those in the former trial which later received full treatment and review by the Supreme Court in the decision referred to supra. It was there definitely decided that the defendant's motion for judgment n. o. v. lacked merit, The opinion (p. 619) states the following: "It seems entirely clear that defendant's contention, that the learned court below committed error in not granting judgment n. o. v. in his favor, is without merit. On the facts here presented, the question whether or not plaintiff's claim was barred by the statute of limitations was one for the jury."
Therefore, defendant's motion here for judgment n. o. v. will be dismissed in appropriate order. The defendant has filed numerous reasons in support of his motion for a new trial, claiming errors on rulings to the introduction or attempt to introduce evidence and errors in the charge to the jury. We are of the opinion that it is not necessary for the disposition of this motion to take up these various reasons seriatim. It is the contention of the plaintiff that the written agreement under seal, dated May 4, 1927, is only historically involved in this proceeding and that the suit is based on the written agreement of November 23, 1932. It is the further contention of the plaintiff that since there are no latent ambiguities in the agreement of November 23, 1932, its interpretation was a question of law for the trial court. This view was adopted by the Trial Judge. The defendant contends that the agreement of November 23, 1932, is only in effect a memorandum and that it ties in and is supplemental to the agreement of May 4, 1927, and that, therefore, this latter agreement contains a latent ambiguity which should have been submitted to the jury for its interpretation.
It is unquestionably the main contention of the defendant that the statute of limitations bars the plaintiff's right to recovery. If the agreement of May 4, 1927, is to be considered as part of the agreement in suit between these parties then the statute of limitations would not be involved because that agreement is under seal. It is to be borne in mind that the defendant was to be reimbursed for the wages and money advanced when the dwelling was sold in accordance with the agreement of November, 1932. Therefore, the Supreme Court ruled (p. 620): "Where, as here, the time for doing an act, necessarily precedent to bringing suit is indefinite, the law allows only a reasonable time: Tasin v. Bastress, 268 Pa. 85."
That Court further ruled that the matter of reasonableness of time within which the plaintiff would give to the defendant to dispose of the dwelling house was a question for the jury. Therefore, in the first instance the plaintiff had six years from November 23, 1932, plus a reasonable time within which to bring suit. The evidence shows that on September 16, 1937, the defendant paid to the plaintiff on account of plaintiff's claim the sum of $300.00. This act tolled the statute of limitations and the plaintiff would again have another six years plus a reasonable time within which to bring suit. If the Supreme Court had not so expressed the law in its opinion but, on the contrary would have determined that even though the statute was tolled on September 16, 1937 that the plaintiff only had an additional six years from that date in which to bring suit, it would have granted defendant's motion for judgment n. o. v., because the statute would have run on September 16, 1943 and this suit was not originally brought until December 21, 1944. The Trial Judge therefore submitted to the jury the question as to whether or not the period of fifteen months following September 16, 1937 was a reasonable time for the plaintiff to have granted to the defendant to again sell the dwelling house and to pay him the balance due on the account stated.
The jury by its verdict unquestionably concluded that the plaintiff had not unduly rested on his rights too long in granting this additional time. Of course there was some oral evidence coming from the plaintiff that the defendant in 1939 and 1940 had stated that he would shortly sell the house and pay to the plaintiff what he owed him. Defendant complains that the trial court erred in allowing into evidence a letter written by the plaintiff's attorney to the defendant in 1937, claiming that said letter was a self-serving instrument. This letter was introduced as part of the cross-examination of the defendant and to show that the plaintiff rather than to bring a law suit was willing to compromise his claim. Following receipt of the letter the defendant, in the attorney's office, did on Date of September 16, 1937 pay on account the sum of $300.00. The letter of 1939, from the same attorney to the defendant, was also introduced as part of his cross-examination to corroborate the plaintiff's testimony that he, the plaintiff, was continuing to importune the defendant to sell the house and to pay him the money due under the agreement of November 23, 1932. It is our opinion that in the circumstances these letters, or copies thereof, were perfectly competent because the defendant admitted receipt of both of them. Defendant also files as a reason for the new trial motion that the court did not submit to the jury the question as to whether or not the $300.00 paid on account on September 16, 1937 was conditioned upon the plaintiff's agreement to use some of this $300.00 to make certain repairs on the dwelling house so that it might be more attractive to prospective buyers. A reading of the testimony of the defendant in this particular will disclose that it was entirely inadequate to establish the $300.00 payment as conditional and that, therefore, if the condition imposed upon the plaintiff was not complied with the statute of limitations would not have been tolled. The adequacy of oral testimony is always for the court — the credibility and weight for the jury. Defendant, by Counsel, undertook to bring into the proceeding many collateral matters of no evidentiary value in determining the issues involved. The Supreme Court has frequently stated that trial courts should be most careful in ruling out collateral and extraneous matters in a jury trial so that the jury will not be led astray from the main factual issues it will later be called upon to decide.
It is our conclusion that the defendant had a full, fair and impartial day in court; that all of his legal defenses were correctly submitted to the jury; that there were no substantial errors in rulings on evidence or in the charge of the court and that, therefore, the defendant's motion for a new trial should also be dismissed.
Defendant appealed.
Joseph R. Doherty, with him McCloskey, Best Leslie, for appellant.
John E. Evans, Sr., with him Evans, Ivory Evans, for appellee.
The judgment of the court below is affirmed on the opinion of Judge KENNEDY.