Scott v. Kennedy , 201 Pa. 470 ( 1902 )

Opinion by

Mb. Justice Fell,

The appellant on February 1, 1884, loaned the appellees $8,500, and took from them a due bill payable on demand, together with a portion of the profits of their business equal to $43.75 per month in lieu of interest. At the same time he took their judgment note payable one day after date with interest. The facts differ from those before us on the appeal No. 189, January term, 1900, in which the opinion of the court has been filed, in this respect: in that case the note did not bear interest, and the agreement recited that the note was taken in payment of a debt, and that in lieu of interest on it a certain proportion of profits was to be paid; in this case interest is provided for in both the agreement and the note. If the intention was to require the payment of interest on the sum loaned, and in addition thereto a share of the profits, the agreement is not within the protection of the act of 1870: Wessels v. Weiss, 166 Pa. 490. It is agreed in the case stated that, “ If the court shall be of opinion that there are inferences of fact which a jury would be justified in drawing, said rule is to be made absolute and an issue framed to determine how much if anything is due by defendants to plaintiff.” The intention is not clear and must be determined by a consideration of the writings with such help as is furnished by the admitted facts and such other facts as it may be competent to show. The judgment is therefore reversed, and the record is remitted in order that an issue may be framed.