Massey v. Blair , 176 Pa. 34 ( 1896 )

Opinion by

Mr. Justice Fell,

The assignment of error relates to the action of the court in making absolute a rule to show cause why a judgment entered upon a judgment note given by the defendant should not be opened. It -is averred in the petition upon which the rule was granted that the note was made by the defendant to raise money to carry on a building operation in which he and the plaintiff were jointly interested; that it was agreed between them that upon the completion of the operation the defendant was to convey to the plaintiff sixteen of the houses, and was to receive from him the said note and other obligations which he had given; that he had offered to convey and had tendered a deed on the condition agreed upon, and that the tender had been refused by the plaintiff.

The dispute between the parties which prevented a settlement of their affairs at the time, and which has given rise to this controversy, related to the payment of debts against the houses. The plaintiff claims that certain debts were to be paid by the defendant before he was entitled to have the notes delivered back. This is denied by the defendant. The written agreement between them is silent upon the subject. The testimony was conflicting and an issue was awarded.

The finding of the learned judges who heard the case should not be disturbed except for manifest error. They are nearer to the parties and to the subject-matter of the dispute, and are thus in a better position than we are to reach a correct conclusion from the conflicting testimony, and nothing short of a clear abuse of discretion would justify a reversal of their order. The fact that the defendant afterward conveyed the houses to a third party, and thus put it out of his power to comply with the terms of the written agreement, does not make him unconditionally liable on the judgment note. If the agreement was, as it appears to be, for the division of the profits of a joint venture, and if the plaintiff refused to carry it out according to the understanding of the parties, the defendant was not bound to retain the title to the houses indefinitely. His conveyance of them in discharge of claims was in the interest and for the relief of both parties. The order of the court is affirmed.