Cobb's v. Burns , 1869 Pa. LEXIS 164 ( 1869 )

The opinion of the court was delivered, March 18th 1869, by

Agnew, J.

The jurisdiction to decree specific performance of the contract of a decedent for the sale of real estate belongs to the Orphans’ Court, under the 15th section of the Act of 24th February 1834. It cannot delegate this jurisdiction to the Court of Common Pleas. An order of the Orphans’ Court which merely “ directs an issue in the matter of specific performance of contract” in a case before the court, and certifies it in these words only) is simply void. It ascertains no fact in dispute, and certifies nothing to be tried. If it means to send to the Common Pleas a question of specific performance, it is improper as an unauthorized delegation of jurisdiction; and if it means to send any issue the parties may themselves choose to raise in the Common Pleas it is equally irregular. The decision of all questions concerning the matter of specific performance belongs exclusively to the Orphans’ Court, unless in the progress of the matter before it, a question of fact arises which it thinks proper to send to be tried by a jury.

The 55th section of the Act of 29th March 1832, declares that the “ Orphans’ Court shall have power to send an issue to the Court of Common Pleas of the same county for the trial of facts by a jury, whenever they shall deem it expedient to do so.” In reference to issues it has been often decided that it is only contested facts which can be certified for trial, and not mixed questions of law and fact. Robinson v. Zellinger, 9 Watts 169; Shertzer’s Executors v. Herr, 7 Harris 34; Russell v. Reed, 3 Casey 166; Christophers v. Selden, 4 Casey 165; Robinson and Minis’ Appeal, 12 Casey 81. After the certificate in this case (such as it was) was filed in the Common Pleas, the issue was made up in the usual way by declaring on a wager, the promise being laid to pay the wagered sum, “ if the said contract was forfeited, and if no money had been paid and received on the said contract.” This was a mixed issue, not one of fact alone. Whether money had been paid and received on the contract was a fact which might be tried; but whether the contract was forfeited might depend on various questions of law and fact. The facts themselves on which forfeiture depended might have been various, as whether payment was made, or the receipt was genuine, or the time of performance waived. A contested fact only can be sent to an issue, so that that fact, whichever and whatever it was, was the fact which should have been certified by the Orphans’ Court, and the issue framed upon it.

If more than one fact be in dispute, all may be certified at the same time, but each one constitutes the subject of a separate issue; though all the issues, if not too numerous and complex, may be tried together before the same jury. The trial of the issues together or severally is a matter to be regulated by the sound discretion of the Court of Common Pleas. But if tried together, there must be a distinct finding upon each issue, and the result of each finding must be certified to the Orphans’ Court. There was error therefore in the certificate of the Orphans’ Court, and in the manner in which the issue was made up in the Common Pleas.

We are of opinion that the learned judge erred in his rejection of the contract. The declaration recited a contract averring it to be forfeited. The ground of forfeiture is said to be.the non-payment of the money at the time stipulated, which gave the right, according to the terms of the contract, to declare it void. This contract was evidenced by duplicate originals, each party holding one; and the plaintiff offered his original as evidence of the terms of the contract, in order to follow it with proof of the forfeiture. The court rejected this duplicate original on the ground that it was not the identical paper which the opposite party had attached to his petition in the Orphans’ Court, and remained there on file. Clearly this was error. The purpose was to show the terms of the contract, in order to reach the question of forfeiture. Eor this purpose the original in the plaintiff’s possession was certainly as good evidence as that in defendant’s hands. In attaching the latter to the petition it was but as evidence of the contract set forth in the petition by the defendant, but it did not deprive the plaintiff’s duplicate of any of its efficacy as evidence also of the contract. The purpose of the defendant in excluding the plaintiff’s paper is obvious. His duplicate contained a receipt, the subject of the controversy; and he wished to force the plaintiff to give his paper in evidence in order to carry with it this endorsed receipt, a mistake however had there been but a single original; for this receipt being the subject of the controversy, the plaintiff was not bound to read it, and could have put the defendant on proof of it. Had the question before the judge been one of identity, or something pertaining to the particular paper itself, as an alleged forgery, his ruling might have been correct.

The judgment of the Court of Common Pleas is therefore reversed ; and it is ordered that all the proceedings in that court be quashed, and that the certificate of issue from the Orphans’ Court, be sent back by the Court of Common Pleas to the Orphans’ Court with a certificate of this order.