#### Waters *v.*Burgess.

The evidence in this case was held to be more than a scintilla, and the case having been submitted without error on the part of the court, and the jury having arrived at its verdict through the exercise of its right to pass upon the credibility of witnesses, the supreme court will not reverse the judgment entered upon the verdict, although they may think that the weight of the evidence was with the party against whom the verdict was rendered.

May 1, 1888.

Error, No. 207, July T., 1887, to C. P. Warren Co., to review a judgment on a verdict for plaintiffs in an action of assumpsit by Seneca Burgess and Maria O. Burgess his wife, in right of Maria O. Burgess, against Myron Waters, at June T., 1882, No. 48. Trunkey, J., absent.

May 8, 1882, summons issued. The declaration contained the common counts, and afterwards, by amendment, a special count, not given, but which is recited as claiming, in substance, that Mrs. Burgess borrowed $1,000 of the defendant by mortgage, and left $500 of the amount with him to pay a judgment, called the Daggett or Lowry judgment, in case the said judgment should be enforced against and collected from the house and lot covered by the mortgage; that, supposing it had been so paid, she paid by mistake the full amount of the mortgage ; and she was accordingly entitled to recover back the $500 with interest. The pleas were non assumpsit, set off and payment with leave.

On March 20, 1880, the Daggett judgment was assigned to the First National Bank. On July 17,1880, the bank petitioned the court to be subrogated to the rights of Miss Daggett, and this application is still undetermined. Oct. 29, 1885, the Daggett judgment was entered upon revival.

On the trial, Burgess testified, inter alia, as follows :

“I was financially embarrassed, and if the Lowry judgment could not be realized from my property, we desired that it should not be collected from my wife’s, and with that view Mr. Waters retained $500 of the $1,000 raised from him on the mortgage to protect this property of hers from the Lowry judgment.” He further testified that the agreement was not in writing.

On cross-examination he admitted writing a letter to Wilber & Miles, attorneys, in which he says: “ As for the First National Bank, you know we paid the judgment for purchase money against the house. We gave Waters a mortgage and this was to clear all claims against the house. He was to get the Wood & Thomas judgment out of the store, if possible, if not, the house was to be clear of the purchase money at any rate. You have an agreement to that effect in your hands.”

The agreement is referred to as exhibit “ E.” It is signed by M. Waters, and recites the judgment of Susan T. Daggett, use of L. L. Lowry, now for use M. Waters *v.*S. Burgess, and proceeds:

“And now, March 31, 1880, for a valuable consideration, I hereby agree to proceed against and claim the amount due on thisjudg*571merit, out of the property of S. Burgess, and not to proceed against the homestead for the same, being the property belonging to Maria O. Burgess, wife of S. Burgess, deeded to her by Susan Daggett, by deed dated Oct. 28, 1870.”

The further facts appear by the charge of the court below.

Plaintiff proposed to show by C. C. Thompson that, in pursuance 'of an arrangement between Mrs. Thompson and Mrs. Burgess to pay the Waters mortgage as part of the consideration for the purchase of the land by Mrs. Thompson, the witness went to Mr. Waters and explained Mrs. Thompson’s agreement with Mrs. Burgess to him, and offered to pay the mortgage which was not then due; that Mr. Waters agreed to receive the payment; that, as a part of the transaction, Mr. Thompson took an assignment, in connection therewith, executed a satisfaction of the mortgage himself, of the same date as the assignment; that no other money was paid by Mr. Thompson in consideration of the satisfaction by him; that the whole transaction was the transaction of the payment of the mortgage to Mr. Waters in pursuance of the agreement between Mrs. Thompson and Mrs. Burgess.

Objected to, the offer does not embrace an offer to show actual payment, or the satisfaction of the mortgage; unless it is to be followed by other evidence amounting to that, it is immaterial and irrelevant.

Additional offer: And that Mr. Waters actually received the amount due upon the mortgage in pursuance of the agreement.

The objection is overruled and exception. [1]

The evidence substantially supported the offer.

Defendant proposed to show that the bank undertook to collect their judgment, part of it from the household goods claimed by Mrs. Burgess after they were moved from this state. That Mr. Miles was acting for Mrs. Burgess in that matter, and it was settled afterwards by taking a mortgage on this house, through him as her agent; for the purpose of showing agency of Mr. Miles, as preliminary.

Objected to, as incompetent and irrelevant. Objection sustained and exception. [2]

The court charged as follows, by Brown, P. J.:

“ On Oct. 28, 1870, Mrs. Maria O. Burgess, by deed from Miss Susan Daggett, became the owner of certain real estate, consisting of a dwelling house and lot in Warren borough. The consideration expressed in the deed was quite a large amount, and, as part of the purchase price, Miss Daggett took a judgment against Mr. Burgess; this judgment was entered of record, I believe, upon the same day that the deed bears date, Oct. 28, 1870, and became a lien upon a certain store house and lot owned by Mr. Burgess, in Warren borough. That judgment was assigned by Miss Daggett to L. L. Lowry, and by Lowry’s executors to the Citizens’ Bank, on March 20, 1880, and the amount of it, $495.15, was subsequently *572paid out of the proceeds of a sheriff’s sale of Mr. Burgess’s property, made in the spring or summer of 1880. On March 31, 1880, Mr. Waters, according to the undisputed evidence, had become the owner of the judgment of Wood & Thomas against Burgess, and also the Daggett judgment, called also the Lowry judgment by counsel and witnesses. On that date, Mr. Burgess and his wife joined in a mortgage to Mr. Waters, which mortgage upon its face is for the sum of *$1,500;*but it appears that $300 of it was intended to cover the amount which it was expected Mr. M. Miles would loan to Mr. Burgess or Mrs. Burgess, but which in fact it would seem was not loaned, and hence admittedly the actual amount of the mortgage given to Waters was for the sum of $1,000. The loan of money from Waters and the giving of the mortgage, it appears, was negotiated by Mr. Miles. And upon its execution, according to the testimony of Mr. Waters, corroborated to some extent at least by the books of the bank, and checks and drafts, as testified to by Mr. Hertzel, Mr. Waters paid to Mr. Miles for Mrs. Burgess the sum of $600. Thus leaving Mr. Waters holding the mortgage for one thousand dollars on which he had advanced the sum of $600 only. Mrs. Burgess claims that she only received $500.

“ We say to you, that, while the question of the amount is, upon the evidence, wholly for you (we do not say this to control you), it is likely that you may come to the conclusion that the actual amount was as is distinctly stated by Mr. Waters, viz: the sum of *$600;*at all events, the undisputed evidence is that, upon some agreement 01-understanding, the difference between the amount of $1,000 represented by the mortgage, and the amount advanced by Mr. Waters, was left in his hands. Under what arrangement and for what purpose is the all important question of fact in this case which you are to settle from the evidence.

[“ Mrs. Burgess claims that, by the agreement, the money was left in the hands of Mr. Waters for the specific purpose of paying off the Daggett or Lowry judgment, in case it became necessary to protect her dwelling house from an attempt to collect the judgment from that property. According to the claim of plaintiffs’ attorney, in the argument, and based upon the evidence, some of the creditors of Mr. Burgess were threatening to proceed against the property bought by Mrs. Burgess from Miss Daggett. And, as we may infer frotn the evidence, the Miss Daggett judgment against Mr. Burgess was part consideration of the deed from Miss Daggett to Mrs. Burgess. The plaintiff was desirous of protecting her property from that judgment, at least it is this which Mrs. Burgess now asks you to find to be the fact. Was this the arrangement? If it was, and if Mr. Waters got the amount of the Daggett judgment from the proceeds of the sale of Mr. Burgess’s real estate, then he ought in this suit to account to Mrs. Burgess for so much of the thousand dollar mortgage as he has received over and above the sum that was advanced by him at the time the mortgage was given.] [8]

*573“ It appears that, in 188x, Mrs. Burgess, by deed, in which her husband joined, deeded the dwelling house and lot to Mrs. Elizabeth Thompson, subject, among others, to the Waters mortgage, and that-the mortgage in full was paid to Mr. Waters on Oct. io, 1881, amounting in all to the sum of $1,090.83.

[“ We say to you that, if you believe the testimony of Mr. Thompson, the circumstances stated by him would amount to the payment of the mortgage to Mr. Waters, so far as the question of such payment is of importance here.] [9]

“ Having thus called your attention to the claim of the plaintiff, I now call your attention to what the defendant alleges were the facts of the transaction. And we say to you, if the evidence satisfies you that the claim of the defendant is correct, that his allegation of the facts is true, then you must find a verdict in his favor. His claim, in substance, is, that he had a judgment originally given to Wood & Thomas against Mr. Burgess, and also the Daggett or Lowry judgment; that he was about to issue execution and proceed upon these judgments (Mr. Burgess being insolvent, as is admittedly the fact in the case) and about to levy upon the furniture and personal property of Mr. and Mrs. Burgess who were about moving west; that an arrangement was made by which he was to omit any claim upon the dwelling house and lot, and was to forbear making levy upon the furniture, and was to take his chances of getting this out of the real estate of Burgess, and the mortgage was made for that amount and was in consideration of that. We say to you, if such were the facts in the case, then Mrs. Burgess must stand by the agreement that she made.

“ In support of the claim on the part of the defendant, it is alleged that, at the time of the transaction, a writing was given showing what the agreement of Mr. Waters was. We say to you, the burden of proof is on the plaintiff to make out her case, and if there is no preponderance of evidence in her favor, the verdict must be in favor of the defendant; but whether there is such a preponderance of evidence or not, is a question entirely for the jury.

[“In support of the defendant’s view of the case, he gives in evidence a writing, dated March 30, 1880, which recites:

“ ‘ Fora valuable consideration, I hereby agree to proceed against and claim the amount due on this judgment, out of the property of S. Burgess, and not to proceed against the homestead for the same, being the property belonging to Maria O. Burgess, wife of S. Burgess, deeded to her by Susan Daggett, by deed dated Oct. 28, 1870.’

“ We say to you, if, under the evidence, you find that this writing involves the whole agreement between the parties, and that the agreement was in consideration of the balance that remained unadvanced to Mrs. Burgess on the mortgage, and he was to have the whole of the mortgage in consideration of taking his chances upon the real estate of Mr. Burgess, or otherwise, then she must stand to *574the agreement, and there can be no recovery in favor of the plaintiffs. On the other hand, if the evidence satisfies you that Mrs. Burgess’s position-is correct, then your verdict should be in her favor, for the amount that Mr. Waters has received over and above the amount that he actually advanced.”] [10]

The plaintiff presented the following points :

“ 1. If-the jury believe from the evidence that the plaintiff, Mrs. Burgess, left with the defendant, Mr. Waters, any part of the money borrowed on her mortgage to him, for the purpose of paying off, in a certain contingency, the Daggett or Lowry estate judgment, and he never paid such judgment, or never paid the money to her, then she has a right to recover in this suit, so much such money as was so left with the defendant, with interest from the date of demand for the same. *Answer:*This point is in accordance with what we have already said to you in the general charge, and is affirmed if you believe the facts as claimed by the plaintiff in this point.” [3]

“ 2. If the jury believe from the evidence that the plaintiff, Mrs. Burgess, under the mistaken opinion that the defendant, Mi'. Waters, had paid off the Lowry judgment, paid to him the full amount of his mortgage against her, she had a right, on discovering her mistake, to demand from him the payment back of the money so mistakenly paid him, and has a right to recover in this suit the money so paid him. *Answer:*This point is affirmed.” [4]

The defendant presented the following points :

“ 1. The evidence of the plaintiffs showing that the mortgage given by the plaintiff to the defendant was never, in fact, paid, or satisfied, but was assigned by Waters to C. C. Thompson, from whom he received the money, and that the same remained unsatisfied, the property of said Thompson, at the date of bringing this suit, the plaintiff cannot recover. *Answer:*In our general charge we have answered this point in the negative, and it is so answered.” [5]

“ 2. The plaintiffs’ evidence showing, if believed, that the difference between the check of six hundred dollars and the one thousand dollars for which the mortgage was really given, was to be used by Mr. Waters in paying off the Lowry judgment, in the event of its being necessary to do so to protect Mrs. Burgess’s real estate, and that proceedings to subrogate other creditors to the rights of the plaintiff in that judgment were pending and undisposed of at the. date this suit was brought, the defendant was entitled to retain the money until that should be disposed of, and the suit is therefore brought prematurely. *Answer:*This point is answered in the negative.” [6]

“ 3. If the jury believe that the agreement made by Mr. Waters at the time of the execution and delivery of the mortgage was the paper given in evidence as exhibit ‘ E,’ and as testified to by Mr. Wilbur, then the plaintiffs cannot recover. *Answer:*This point is affirmed, if, in addition, the jury believe that that was the only agreement.” [7]

*575Verdict for plaintiffs for $524, on which judgment was entered. The defendant then took this writ.

*The assignments of error*specified, 1, the admission of plaintiffs’ offer in evidence, quoting the bill of exception but not the evidence; 2, the refusal of defendant’s offer, quoting the bill of exception ; 3-7, the answers to plaintiffs’ and defendant’s points, quoting the points and answers; 8-10, the portions of the charge embraced in brackets, quoting them; 11, that the general charge was inadequate and misleading.

*Charles H Noyes,*with him *Watson D. Hinckley,*for plaintiff in error.

The suit was prematurely brought. The proceeding by which the lien ^vas sought to be established was pending and undetermined at the date of bringing this suit.

The facts stated in plaintiffs’ second point were insufficient to justify a recovery.

The rights of Mrs. Burgess depends upon the contract between herself and her vendee, Mrs. Thompson, and cannot be determined in this suit. If the defendant received the whole amount from Thompson without disclosing the true state of affairs, he may be liable to refund to Thompson; but this suit cannot determine that liability, and a judgment in this case would not protect him from such a claim.

As to the answer of the court to the plaintiffs’ second point: By the unqualified affirmation of this point, the jury are instructed that they are to find for the plaintiff if they believe from the evidence that Mrs. Burgess paid Mr. Waters the full amount of the mortgage, mistakenly supposing that he had paid off the Lowry judgment, without more. They had been instructed that, for the purposes of this case, the sale of the mortgage to C. C. Thompson .was the same as receiving payment of it from Mrs. Burgess, and they are now told that, whether they believe that Mrs. Burgess received the full consideration for the mortgage or not, whether the agreement upon which she accepted less than the full amount was indemnity against the claims of Waters, or whatever it might have been, if they find that Mrs. Burgess thought he had paid the Lowry judgment and was mistaken about it, and under that mistake paid her honest debt in full, she is entitled to recover a portion of the amount paid from the defendant. A proposition so preposterous needs only to be stated, yet this is precisely the effect of the unqualified answer to this point, which utterly ignores all the really material questions in the case. It is error to submit to the jury an impertinent issue: Delaware & Hudson Canal Co. *v.*Torry, 33 Pa. 143-

The absurd “ scintilla ” doctrine is thoroughly exploded in Pennsylvania. As was said by this court in Mead *v.*Conroe, 113 Pa. 220: “ There must be satisfactory evidence from which a rational inference can be drawn.” And, “ while it is true that juries *576are the judges of the credibility of witnesses, they have no unlicensed privilege to accept the uncorroborated assertion of one witness, and disregard, without reason, the opposing and concurring testimony of five equally credible witnesses, with equal opportunities of observation and knowledge.” How much less the statement of an interested party, uncorroborated, and at variance with every undisputed and certain fact in the cause, incredible in itself, and contradicted by the written statement of the same witness made near the time of the transaction, and by a written agreement referred to by the witness, and produced from the custody in which he states he left it?

*D. I Ball,*with him *C. C. Thompson,*for defendants in error.

The Da'ggett or Lowry judgment was taken by Miss Daggett against Burgess as part payment of the consideration of the house and lot which she sold to Mrs. Burgess. She made the deed to Mrs. Burgess, and took this judgment against Burgess. As against her own act and deed she could not claim that the title to this land was in Burgess so that this judgment should be a lien upon it when she had deeded it to Mrs. Burgess: Thompson *v.*Thompson, 82 Pa. 378; Shuster *v.*Kaiser, 111 Pa. 221; French *v.*Mehan, 56 Pa. 286. No person subrogated to her rights as plaintiff in the judgment could claim any higher rights than she possessed.

Even if the Daggett judgment had been a lien upon Mrs. Burgess’s land, it had ceased to be a lien long before the commencement of this suit.

According to Mrs. Burgess’s theory, and the evidence supporting it, Mr. Waters was her bailee for her benefit, and she might call for the money from him when the objects of that bailment were accomplished, or the reasons for it terminated. Of this she was the judge. Having demanded her money of Mr. Waters, and he having refused payment to her, she had a clear right to bring suit to recover from her bailee.

The suggestion in the argument for the plaintiff in error that Mr. Thompson might sue Mr. Waters and recover the sum paid the látter in excess of what he was entitled to, it is submitted, is incorrect. It was paid to Mr. Waters under the agreement with Mrs. Burgess to do so. So far as Mr. or Mrs. Thompson is concerned, Mrs. Burgess has recognized the payment of the money to Mr. Waters, by sueing the latter for it. Besides, Mr. Thompson, while he has taken no part in the conduct of the case because of the circumstances making him a witness, is attorney upon the record in the court below and in this court, asserting of record in that matter Mrs. Burgess’s right to the money, and he would now be estopped from denying it and claiming it as his own: Hoar *v.*Axe, 22 Pa. 381. And he has never made any such claim.

Money paid under a mistake of fact may be recovered back under a count for money had and received : Thomas *v.*Brady, 10 *577Pa. 168; Miles *v.*Stephens, 3 Pa. 37; Hoover *v.*Senseman, 3 Cent. 54°-

May 25, 1888.

. . . . , In Mead *v.*Conroe, the suit was an action of ejectment involving an equitable title, and not an action triable in a court purely of law.

Per Curiam,

After a careful examination of this case, we are forced to the conclusion that it was one principally of fact, and was properly submitted to the jury. There can be no doubt but that, admitting the rectitude of the testimony presented on part of plaintiffs, the conclusion reached was not only legal but just. It is true, the proofs adduced by the defendant ought, if believed, to have produced a very different result. The credibility of the witnesses was, however, for the jury, and that those of the plaintiffs were believed rather than those of the defendant was no fault of the court, hence cannot be corrected by us even though we might think the weight of the evidence to have been with the latter.

The judgment is affirmed.