Plunk. Murray v. Raniszewski Et Ux.

Petition for reargument is refused. We have again carefully considered the questions involved in this appeal with special reference to the matters called to our attention in the petition for reargument and are of the opinion that the case was decided correctly. We had considered the effect of certain statements in the petition and answer, although special reference was not made thereto in the opinion.

It is now contended, as it was in the original brief filed, that the averments in the petition and answer supplied admissions sustaining the appellants' position. In the petition to open the judgment, there was the following paragraph: "Defendants aver that they have paid to the plaintiffs, through their duly authorized agent, James J. Boyle, the full amount of the mortgage, together with interest on the same as it became due and payable, and also a satisfaction fee." This is followed by a schedule of the various payments made to Boyle. In answer to this paragraph, the plaintiffs said in part as follows: "It is admitted that $500 was paid March 2, 1925, $100 September 29, 1925, $200 September 28, 1926, by the defendants to James J. Boyle and by Boyle to deponents. It is denied that James J. Boyle was authorized to act as agent for deponents in the collection of any other sums on account of the principal of the said mortgage, or to receive any further sums of principal from the defendants." It is suggested that the fair inference from the answer of the plaintiffs taken with the petition is that the plaintiffs admitted the fact that Boyle was the agent of the mortgagees in the receipt of payment of the first three sums paid on account of principal and *Page 516

that this taken with other facts was sufficient to show a course of conduct establishing the relation of principal and agent between the mortgagees and Boyle and raised an issue of fact which should have been submitted to a jury. A reference to the averment in the petition will show that it is ambiguous. It is impossible to say from reading the paragraph whether the mortgagors intended to say that Boyle was the agent of plaintiffs or defendants. They state that "they have paid to the plaintiffs, through their duly authorized agent, James J. Boyle, the full amount of the mortgage." The possessive pronoun "their" might just as well, or more reasonably, be applied to defendants as to plaintiffs, since there is nothing in the context or position to indicate definitely to which of the parties the word "their" refers. It is only by inference that it might be concluded that the answer intends to admit authority upon the part of Boyle to receive payments of principal on behalf of the plaintiffs. The evidence was directly to the contrary. The question whether Boyle was the agent of the mortgagors or mortgagees in the transmission of the payments to apply on principal was a matter to be determined rather from the facts shown with relation to the actual conduct of those involved than from a mere inference.

In the opinion filed, we said: "The facts, while resting in parol, are not in dispute." This statement was not precisely correct. The facts presented on the hearing on the rule to open the judgment were not disputed. The defendants called as witnesses the mortgagees as on cross-examination and did not contradict their testimony, nor was the evidence on the part of the mortgagees contradicted. Conceding that the court could properly take into consideration the averments in the pleadings as construed by appellants and that this raised an issue of fact, it does not follow that *Page 517

the court was bound to submit that issue to a jury. "Where an application is made to open a judgment the relief demanded is in equity, and the applicant or complainant must make out a case which would justify a chancellor in entering the decree": Kline v. Fitzgerald Brothers, 267 Pa. 468 , 471 , 110 A. 348 . Consequently, we arrive at the same point, for in the end it is a matter to be determined in the first instance by the court in the exercise of its equitable powers. We are of the opinion that the lower court did not abuse its discretion in refusing to open the judgment.