enants; and, although there may be cases in which such acceptance is but a part execution of the contract, yet, to rebut the legal presumption, the intention to the contrary must be clear and manifest." See, also, Gregory v. Griffin, 1 Pa. 208; Creigh v. Beelin, 1 Watts & S. 83, 88; McKennan v. Doughman, 1 Pen. & W. 417, 419; Titus v. Poland Coal Co., 263 Pa. 24, 33, 106 Atl. 90, and cases there cited. the part of the vendee, to indemnify the In Jones v. Wood, 16 Pa. 25, 38, after stating the court below was right in instructing that the delivery and acceptance of a deed "was a consummation of the prior agreement, and operated to put an end to all ques- [5] As a general rule, an agreement for tions concerning [among other things] the the purchase of land will merge in the deed purchase money to be paid," this appears: consummating the sale, but a covenant or "As a general rule the parties to obligation, not intended "to be consummated the transaction are absolutely precluded from by the deed," will not merge. Harbold v. looking behind the conveyance for subjects Kuster, 44 Pa. 392, 394. Therefore, the quesof strife, suggested by their previous***tion in a suit such as we have mentioned contracts"; the court adding, the doctrine might well be: Was the obligation of the was applicable to all parties in interest, there being in that case a transfer by the vendee named in the sale agreement of his interest to a third party (as in the case now before us), a deed by the original vendor to this third party, and a dispute between the vendee and his assignee. In Cronister v. Cronister, 1 Watts & S. 442, 444, we stated that, as between vendor and vendee, the execution of a deed by the former, acceptance by the latter, and the giving of a bond for the purchase money, merged the agreement of sale and prevented the vendor from raising any question as to the adequacy of the consideration. See also Moser v. Miller, 7 Watts, 156, 158, where we said, inter alia, that, under the circumstances there present, "the deed must be regarded as containing the last agreement of the parties on the subject" of the consideration to be paid. original vendee, to indemnify the vendor, in- [6] To the suggestion that the documents Haggerty v. Fagan, 2 Pen. & W. 533, 537, 538, 539, presents a ruling to this effect: When a deed has been executed in pursuance of a prior agreement, it is prima facie evidence the latter had so merged that no action could be maintained on any of its cove-served; and this was allowed to be proved nants; we there say, the parties, by the conveyance, put their construction on the prior agreement. Plaintiff in the case before us contends, and the court below proceeded on the theory, that the obligation to indemnify the vendor was part of the consideration and, as such, it could not be superseded by the deed of conveyance; but, as will be noticed from some of the cases already cited, a vendor is often precluded by his deed of conveyance from afterwards raising questions concerning the consideration. Of course, where the purchase price is represented entirely by cash, the execution and delivery of a deed will not prevent the grantor from recovering any unpaid consideration, but, where a portion of the price is represented by an obligation on by evidence of a parol agreement, to that (116 A.) shown which will relieve him from the prima tered as the facts proved may legally and facie liability thus appearing. See, also, Metzgar and Gernert's Appeal, 71 Pa. 330, 332; Merriman v. Moore, 90 Pa. 78, 80. equitably require; otherwise, the original decree dismissing the bill is to be forthwith reinstated, unless the court below, on cause shown, grants an extension of time. Appellee to pay the costs to date. (273 Pa. 189) [7] On the present record, however, whether the documents in the case are considered alone or in connection with the facts attending their execution, it cannot be determined, in the absence of the vendee, what force should be given to them, so far as the latter's alleged liability to the vendors is concerned; for, obviously, such a determination could have no effect upon the vendee nor be (Supreme Court of Pennsylvania. March 6, of any benefit to the vendors. On the contrary, it might put them to FINEMAN v. CUTLER et al. 1922.) material in-. Specific performance 106(1)-Purchaser contracting as agent and his principals are necessary parties for specific performance in favor of assignee. convenience and eventual loss. Therefore we cannot decree a conveyance from the vendors to plaintiff, by undertaking to determine the liability of one who is not a party to the proceeding; the result of such an attempt might be to pay the vendors for their property in that which, when they came to realize on it, would prove of no legal value, and this a court will refuse to do as "unjust" and "inequitable." For discussion of the principles governing the rule that courts will not proceed in the absence of indispensable parties, see our opinion, filed simultaneously herewith, in Fineman v. Cutler, 116 Atl. 819, and authorities there cited; also see Black v. American International Corp., 264 Pa. 260, 264, 107 Atl. 737, and Hoover v. Pontz, 271 Pa. 285, 288, 114 Atl. 522. In a suit to compel a vendor to convey property subject to a mortgage to the assignee of the purchaser in the contract, where the contract designated the purchaser as agent without designating his principals, a decree for specific performance cannot be rendered unless the designated agent and his principals are made parties to the suit so that it can be conclusively determined who were the principals of the purchasing agent and what obligation the agent and his principals would owe to the vendor to indemnify him against loss on account of the mortgage. 2. Appeal and error 187(3)-Equity 117-Absence of "indispensable parties" can be raised at any time. Since the absence of indispensable party, that is a party who has such an interest that a final decree cannot be made without affecting it, or without leaving the controversy in such a condition that the final determination to the jurisdiction of the court, an objection may be wholly inconsistent with equity, goes to the proceeding on that ground may be raised at any time during the hearing or on appeal, or the court may of its own motion raise the objection. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Indispensable Party.] Appeal from Court of Common Pleas, If, at another trial, it shall be decided that plaintiff is entitled to specific performance of the contract, then the question will be presented: In what form can such relief best be granted to do exact justice to all concerned? and, in this connection: Shall defendants be ordered to convey directly to the assignee of the vendee, or might that course entail upon them either possible loss or future material inconveniences, in proving liability on the part of the one they may look to, subsequently, as indemnitor? To guard against the last-mentioned contingencies, were a direct conveyance to the assignee of the vendee decreed, should the vendee be ordered to give his personal bond, as evidence of his continuing liability or should the situation be worked out by directing two conveyances, from defendants to their immediate vendee and the other from the latter to his assignee? These are some of the questions in the case that suggest themselves, but they cannot be decided until all parties in interest have had a full opportunity to be heard thereon. For reasons stated above, the decree appealed from is reversed, the record is remitted with directions that-if, within two weeks from the filing of the remittitur, plaintiff amends his bill, and, by due and proper means, makes Harry Cylinder and his wife, if one he has, parties defendant-the case MOSCHZISKER, C. J. In its main asshall be tried de novo and such decree en-pects, the present case is controlled by our Suit for specific performance by Max Fineman against Samuel Cutler and another. Decree for the plaintiff, and defendants appeal. Reversed and record returned to the court below with directions. Argued before MOSCHZISKER, C. J., and Samuel E. Kratzok and Samuel Willig. both of Philadelphia, for appellee. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes decision in Dobkin v. Landsberg, 116 Atl., case) involved a determination of the ques814, the opinion in which is filed simulta- tion of the liability, as indemnitor, of the neously herewith [the preceding case]. Max original vendee to the defendants, it could Fineman, plaintiff, sued in equity, as "as- not be adjudged properly in the absence of signee of Jacob Gable, agent for David Feld," the vendee as a party litigant. to enforce specific performance, against Sam- [1] The same principles stated in the uel Cutler and Mollie Cutler, defendants, of Dobkin Case control here, and even more so; a written contract for the sale of real es- for in the present case the contract of sale tate, wherein the Cutlers agreed to sell, and is signed by Jacob Gable, the vendee, as "Jacob Gable, agent," agreed to purchase, "agent" without disclosing his principal. If, the property in controversy for $5,000, pay-in the future, there should be a default on able by, inter alia, allowing "the present the existing mortgages, to the financial loss mortgages of $3,300 to remain." The vendce of defendants, and they were to undertake named in the agreement of sale assigned the collection of that loss from Gable, it his interest to the present plaintiff, the as- might well be the latter would defend on signment being executed, under seal, by the ground that he merely acted as an agent, "Jacob Gable, agent for David Feld," and who, as a matter of fact, had disclosed his signed by David Feld and Annie Feld, his principal and therefore had no personal rewife, as subscribing witnesses. For rea- sponsibility; or, if suit were brought against sons, as to which the parties litigant dis- Feld, as principal, he might question Gable's agree in their testimony, defendants refused authority to fasten on him the responsibility to make the conveyance to Fineman, saying of an indemnitor, or he might set up the they had "sold the house to Gable and would defense if it was the intention of the parties deal with Gable only"; thereupon this suit that the contract of indemnity, growing out was instituted. The court below entered a of the terms of purchase, was merged in decree directing defendants to deed the prop- the deed to Fineman; or still other defenses, erty to plaintiff, and defendants have ap-growing out of the facts and circumstances pealed. While Gable and Feld appeared as wit-tract, its assignment, and the execution of nesses for plaintiff and, on their testimony, the court below found that, when Gable executed the contract of purchase and the assignment thereof, he was acting as the agent of Feld, yet neither of them was made a party to the suit. attending the making of the original con the deed in pursuance thereof, might be depended upon by him. To all of which we call attention for the purpose of indicating the necessity of having each party to thes? transactions upon the record, before the questions here sought to be determined are adjudged. In Schaeffer v. Herman, 237 Pa. 87, 97, 85 Atl. 94, depended upon by the court below and plaintiff, where a decree ordering the conveyance of real estate to an assignee of the original purchaser was directed, "all the parties were before the court, and their they appeared. Other authorities cited by appellee are covered by our discussion in Dobkin v. Landsberg, which need not be repeated. [2] Both Gable and Feld are "indispensable parties to the proceeding," and, as above pointed out, the decree entered in their ab He contends such an agreement is assign-rights [were] determined under the facts" as able, and the assignee is entitled to specific performance, because by a conveyance to him (the assignee) the vendor in no sense loses his right to look to the original vendee to indemnify him (the vendor) against his personal responsibility for the existing mortgages. On the other hand, defendants contend that by such a conveyance all obliga-sence is "inequitable" and "unjust," as it tions arising out of the terms of the purchase are merged in the deed; and thus, they (the defendants) will be deprived of that to which the agreement of sale entitles them, namely, the right to hold the vendee, with whom they contracted, to his responsibility as indemnitor. may eventuate in material inconvenience and loss to defendants. We said in Hartley v. Langkamp, 243 Pa. 550, 555, 556, 90 Atl. 402, 403 (from which the above quoted words are taken), that "one must be joined who otherwise, not being bound by the decree might assert a demand * which would be Like contentions to those just stated are inequitable after the [principal defendants'] fully discussed in Dobkin v. Landsberg, su- performance of a decree in favor of the pra; we there decide that, since merger is a plaintiff"; and, again, "a party is indispensquestion of intention, to be determined on able when he has such an interest that a the facts of each particular case, and since final decree cannot be made without affectthe decision of that point, under the cir- ing it, or leaving the controversy in such a cumstances there presented (which, for in- condition that the final determination may (116 A.) Argued before FRAZER, WALLING, SADLER, and SCHAFFER, JJ. conscience"; finally, "it is a settled rule of equity jurisprudence that as the absence of an indispensable party goes to the jurisdicWalter Biddle Saul (of Saul, Ewing, Remtion of the court, an objection to the proceed-ick & Saul), of Philadelphia, for appellant. ing on that ground may be raised at any John K. Loughlin (of Loughlin & Wooltime, during the hearing or on an appeal ford), of Philadelphia, for appellee. from the decree of the trial court. The court may, of its own motion, for the like reason, raise and pass upon the objection, and if the ground of want of jurisdiction be not removed by bringing the proper parties on the record as parties to the proceedings the chancellor may dismiss the bill." See, also, Maguire v. Heraty, 163 Pa. 381, 387, 30 Atl. 151, 43 Am. St. Rep. 800; Heck v. Collins, 231 Pa. 357, 362, 80 Atl. 535, and Dobkin v. Landsberg, supra, with authorities there cited. PER CURIAM. Abraham Coates died testate November 2, 1887. At the time of his death he was engaged in the tanning business and also as an importer of goat skins, with his son James S. Coates, under the firm name of Keen & Coates. His interest in the importing business, the one with which we are concerned here, was appraised at $94,051.53, its book value at the time. His son, as surviving partner and also as executor and trustee under the will, liquidated the business of the firm, and, as collections were made, filed accounts in the orphans' court, and turned over the proceeds realized to those entitled to receive them. The fourth account, filed in 1893, showed an uncollected balance of $30,244.21. Nothing has been received on account of this balance since 1893. Five accounts were filed in the orphans' court, the last in 1918. In that account the executrix, an aunt of appellant, asked that the amount of $30,244.21 be charged off as uncollectable. This request was joined in by all parties in interest except appellant, a grandson of testator, who would be entitled to receive one-twentieth of the amount if collected. The lower court, after full consideration, was of the opinion the balance shown was uncollectable and charged it off. From that action appellant appealed, claiming the executrix should be surcharged March 6, with the amount because of the destruction of the firm's books in 1915. The decree is reversed and the record returned to the court below, with directions that if, within two weeks from the filing of the remittitur, plaintiff amends his bill and brings in Jacob Gable and David Feld with their respective wives, if any they have, as parties defendant, the case shall be tried de novo and such decree entered as the facts proved may legally and equitably require. Should plaintiff not pursue the course above outlined, within the time fixed, or any extension thereof which, on cause shown, may be granted by the court below, the bill is to be dismissed. Appellee to pay the costs to date. (273. Pa. 201) In re COATES' ESTATE. (Supreme Court of Pennsylvania. Trusts 181(1) 1922.) Debt due partnership of which testator was a member held properly charged off as uncollectable. Where debt due partnership, of which testator was a member, remained uncollected for more than 30 years after testator's death, and for more than 25 years after the affairs of the partnership had been practically closed out, and after unsuccessful efforts had been made during all of such time to collect the debt, the action of the orphans' court in charging off the debt as uncollectable on the account of a surviving and inactive trustee, instead of surcharging the trustee with amount thereof by reason of the destruction of the firm's books, held proper, where books were not destroyed by such trustee but by an employee of the firm, and there was no showing of negligence on the part of trustee in failing to collect. Appeal from Orphans' Court, Philadelphia County: Charles Francis Gummey, Judge. In the matter of the estate of Abraham Coates, deceased. From judgment, approving account of executrix charging off certain debt as uncollectable, Edwin A. Landell, Jr., appeals. Affirmed. Appellant's contention is that the burden included in the $30,244.21, charged in the was on accountant to show why the items inventory, had not been collected, particularly in view of the fact that the firm books had been destroyed. The books were not destroyed by the surviving trustee, the accountant, but by a confidential bookkeeper in the employ of the firm for many years. We find no indication that such action was taken with a purpose to injure or defraud, or that appellant suffered loss by reason of their destruction. Further, it appeared that accountant was the surviving and inactive trustee. The affairs of the partnership having been practically closed out in 1893, and unsuccessful efforts having been made in the meantime to collect the amount in dispute, that sum was carried from one account to another, by advice of counsel, with the expectation that at least some portion of it might be collected. Under such circumstances, the inactive trustee should not be charged, where the assets in the inventory are doubtful, unless it appears there was negligence on her part in failing to collect. This For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes does not appear. After considering the question raised and hearing testimony of the parties, the court below concludes its opinion in the following language: PER CURIAM. In this case the two defendants, by affidavit of defense, in effect demurred to the statement of plaintiff, in which the latter claimed damages against the former for malicious prosecution, alleging, inter alia, that defendants were client and attorney in the prior action, and charg "I refuse [the surcharge] because I am satisfied from the testimony of [the accountant], the various papers submitted, the letter of Mr. Crawford [attorney for the estate] of Decem-ing them in the present suit as joint tortber 5, 1905, the interviews of the present exceptant with Mr. Duncan [the bookkeeper] in his lifetime, that not only was it a fact that all the assets (except the Keen account) of de cedent's interest in the importing and goat skin business have been collected, but that all parties in interest knew of that fact, and I therefore refuse Mr. Landell's request that the present accountant be surcharged with the sum of $30,244.21, and direct that the said sum be charged off as uncollectable, except in so far as future collections may be had on the Keen account." We are of opinion the amount stricken off is clearly uncollectable, and the lower court was not in error in making its order to that effect. Decree affirmed at costs of appellant. (273 Pa. 231) MUIR v. HANKELE et al. feasors; judgment was entered for defendants, and plaintiff has appealed. [1-3] We adopt, as correctly disposing of the case, the following excerpts from the opinion of the court below: "The tort with which they [defendants] are charged is an alleged malicious prosecution of plaintiff for larceny and larceny as bailee, upon information lodged by defendant Hankele, who, claim, was acting under the advice of defendat the time, it appears by the statement of ant James, his attorney. In Minnich v. Electric Ry. Co., 203 Pa. 632, 636, 53 Atl. 501, the Supreme Court says: "The point decided in these three cases [referring to Howard v. Union Traction Co., 195 Pa. 391; Dutton v. Lansdowne Borough, 198 Pa. 563; and Wiest v. Electric Traction Co., 200 Pa. 148] was that where a joint tort is alleged, it must be proved, and that if the proof is only of a tort by one defendant or of separate torts by different defendants, the action cannot be sustained against any of them.' Had suit been brought against (Supreme Court of Pennsylvania. March 6, defendant Hankele alone, and the statement of 1922.) claim disclosed, as in this action, that at the time he caused the arrest of the plaintiff he was acting under the advice of his attorney, the action could not have been maintained, under the authorities. In such actions want of probable cause and malice must concur. McClafferty v. Philp, 151 Pa. 86, 91, 24 Atl. 1042, 1. Malicious prosecution 16- Malice and want of probable cause essential elements. In an action for malicious prosecution want of probable cause and malice must concur. 2. Malicious prosecution 21(1)—Advice of 1043 [where it was said]: 'Nothing is better counsel defense. The advice of an attorney, acted upon in good faith by the prosecutor submitting the facts, rebuts the inference of malice and defeats an action for malicious prosecution, against the client as well as against the attorney giving such advice in good faith. 3. Judgment 239-Failure to state cause of action as to one joint tort-feasor bars recov ery. Where two parties are jointly charged with malicious prosecution, there can be no recovery on a statement of claims which makes out a cause of action against one only. Appeal from Court of Common Pleas, Bucks County; William C. Ryan, Judge. Action by Alfred H. Muir against Allen J. Hankele and another. Judgment for defendants, and plaintiff appeals. Affirmed. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ. [See If settled than that when the prosecutor submits See Pension M. L. I. Co. v. Whitely, 261 Pa. 304, 104 Atl. 658. There is nothing in the averments of the John L. Dubois, of Doylestown, for appel-statement of claim to take the present case lant. out of the general principles above Isaac J. Vanartsdalen and Calvin S. Boy-ferred to. er, both of Doylestown, for appellees. The judgment is affirmed. |