Estate of Dutton

Opinion by Mr. Justice McCollum, Three questions are raised by the assignments of error. They are (1) whether Larkin was a competent witness to testify to matters occurring between himself and Dutton and Singleton in the lifetime of Beatty, (2) whether the mortgage from Dutton to Singleton on October 31, 1882, operated as an equitable assignment of the former’s interest in the recognizance and (3) whether Dutton’s assignment to Beatty on January 21,1884, was subject to the equity of Singleton founded upon the loan and mortgage. Questions 1 and 2 were not discussed on the argument at bar, nor in the appellant’s paper-book. Prom this we might infer an abandonment of the assignments of error which raised them. The auditor held that Larkin was a competent witness, that the [436] mortgage operated as ail equitable assignment of Dutton’s interest in the recognizance, and that Dutton’s assignment to Beatty was subject to Singleton’s equity. In so holding he was sustained by the court below. He cited Kuhns’s Appeal, 163 Pa. 438, as authority for his ruling upon the first question. This case appears to sustain the ruling. As authority for his ruling upon the second question he referred to a number of cases among which we note Hay v. Mayer, 8 Watts, 203, Costen’s Appeal, 13 Pa. 292, Horner’s Appeal, 56 Pa. 405 and Bailey v. Allegheny National Bank, 104 Pa. 425. These cases, together with the testimony concerning the transaction of October 31, 1882, make it clear that as between Singleton and Dutton the former was entitled to the latter’s interest in the recognizance as security for the loan. That Larkin now has Singleton’s equity with whatever rights he had to enforce it against’Dutton or Beatty is also clear. The third question was the one to which the argument of the appellant was exclusively directed. In considering it we must not lose sight of the fact that the assignment of the recognizance to Beatty was made as collateral security for a pre-existing debt, and that it was not shown that there was a.consideration for it. The appellant, however, contends that inasmuch as the assignment and the bond conditioned for the payment of the debt in one month from the date thereof were executed on the same day, the auditor should have found as a fact that there was an extension of the time for the payment of the debt, and that such extension was the consideration for the assignment. But this was not a necessary sequence from the facts. “ Consideration like every other part of a contract must be the result of agreement. The parties must understand and be influenced to the particular action by something of value or convenience and inconvenience recognized by all of them as the moving cause. That which is a mere fortuitous result flowing accidentally from an arrangement, but in no degree prompting the actors to it, is not to be esteemed a legal consideration: ” Kirkpatrick v. Muirhead, 16 Pa. 126. The cases cited by the auditor as bearing upon the question under consideration sustain his conclusion that “in order that an extension of time shall be a good and valid consideration it must be contracted for.” Besides, whether the extension of time was the consideration of the assignment [437] was a question of fact in determining which, the nature of the transaction and the circumstances surrounding it, as well as the extension itself were to be taken into account. The cases cited by the appellant show that where the question arises in an issue before a jury the decision of it rests with them. In the case at bar the auditor as to questions of fact involved in it was in place of the jury, and his findings in regard to them were as conclusive as a verdict. He virtually found that the extension of time was not the consideration of the assignment, and as it was not claimed that there was any other consideration for it he held that it was subject to the equities founded upon the prior assignment to Singleton. In this conclusion we concur. Decree affirmed and appeal dismissed, the costs to be paid by the appellant.