McCoy v. Kane

Opinion by

Rige, P. J.,

The authorities cited by the appellant’s counsel show, that if a plaintiff state an act, transaction or contract as the foundation of his equity, the defendant has a right to state the whole of such act, transaction or contract as in truth it was. “ Otherwise a plaintiff by giving only part of a contract, if the defendant must admit that part and cannot go on to describe truly all the parts of it, the grossest injustice might be done:” Eaton’s Appeal, 66 Pa. 483. Thus where the answer to a bill filed to compel the delivery of securities alleged to be held by defendant as collateral, denies that they are held in the manner alleged, and sets up the title in which they are claimed to be held, it is responsive : Burke’s Appeal, 99 Pa. 350. See also Schell v. Deperven, 198 Pa. 591. The original transaction set up by the bill, as described in the answer, was an agreement that the defendant should take title to the mortgage to himself, “to reimburse him for the $1,500 of his own money before advanced and to provide him with resources for procuring $3,000 then urgently required by Alexander McCoy, Robert McCoy and Edward F. Kane in their capacity of equal one third co-partners in the firm, trading as the Cedar Hollow Lime Company.” Applying the principle stated at the outset, this averment must be deemed responsive, and not having been rebutted by the quantum of proof required to overcome the effect of a responsive answer, and being in addition sustained by affirmative evidence the learned trial judge was clearly warranted in finding as a matter of fact that “ the bond and mortgage were by consent of all parties taken in the name of Kane to reimburse him for the $1,500 advanced by him and to provide him with resources for procuring $3,000 then required by the parties in their business.” The suggestion that because he was unable to obtain the money by a sale of the mortgage, the purpose for which it was taken in his name failed is without merit. The undisputed evidence shows that he obtained the money for the purposes above stated by pledging the mortgage as collateral security for his personal note, and that after reimbursing himself for the $1,500 advanced by him, he deposited the remaining $3,000 to the credit of the Cedar Hollow Lime Company. It was further shown by the clear preponderance of testimony that this latter fact was made known to the plaintiff before he filed this bill, and that, if the latter did not in so many words express his approval, he did not object. Between the dates of the filing of the bill and the filing of the answer, the mortgage was paid and the proceeds applied to the repayment of the loan for which it had been pledged as collateral. The sum and substance of the transaction is that the $3,000 profit which the parties made in the purchase and sale of the real estate was put into the partnership funds, as it was intended it should be when the mortgage in question was taken. It would be highly inequitable to compel the defendant to account for and pay over to the plaintiff any part of it. These latter conclusions of fact are reached without giving a responsive effect to the averments of the answer as to the disposition of the mortgage and the proceeds of the loan for which it was assigned as collateral. They are based on competent testimony, for the most part uncontradicted, which convinced the trial judge, and has convinced us, of the truth of the averments of the answer. The proposition, admitting its soundness, that an answer in chancery when it alleges payment in discharge of a trustee is confined as to its responsive effect to small sums, is therefore inapplicable, and need not be discussed.

We do not deem it necessary to discuss in detail the specifications of error relative to the rulings on evidence at the trial. We have given them due consideration and conclude that they are without merit.

The decree is affirmed and the appellant is ordered to pay the costs.