90 Pa. Super. 565 | Pa. Super. Ct. | 1927
Argued April 22, 1927.
The plaintiff's action was brought May 13, 1924, against Clement V. Smith and John N. Smith to recover the sum of $5,600 with interest from October 28, 1919. The action was based on a parol contract set forth in the statement of claim entered into April 1st, 1919, according to the terms of which the defendants agreed with the plaintiff that the latter should act as agent for them in securing a purchaser for a farm in Westmoreland County. One-half of the farm belonged *567
to Clement V. Smith, and the other half to the heirs of Lewis S. Smith of whom John N. Smith was one. Affidavits of defense denying the employment of the plaintiff were filed by the defendants. Clement V. Smith having died before the trial, his administrators were substituted as parties defendant. At the trial the plaintiff was the first witness called and was permitted to testify, against the objection of the defendants, that he had a verbal contract with Clement V. Smith entered into at the office of Mr. Kunkle in Greensburg in the presence of John N. Smith in June, 1919, in which Clement V. Smith promised to pay the plaintiff $2,500 as commission on the sale of the farm. Sometime thereafter the farm was sold to William G. Blanchard whose attention the plaintiff alleged was brought to the farm by him. No other evidence bearing on the contract was offered by the plaintiff. At the close of the testimony the defendants asked for a compulsory nonsuit for the reason, among others, that the contract proved was not the contract set forth in the statement of claim. Nonsuit having been refused, evidence was offered by the defendants in denial of the alleged contract of June, 1919. The verdict having been rendered for the plaintiff, a rule for judgment non obstante veredicto was obtained and after argument was made absolute, from which judgment the plaintiff appealed. The judgment was entered for the reason that the plaintiff was not a competent witness in the first instance to prove the contract, Clement V. Smith having died before the trial. As there was no other evidence in support of the action, the judgment necessarily followed if the plaintiff's evidence was inadmissible. On that question the authorities are with the court below. The Act of June 11, 1891, P.L. 287, makes competent the testimony of a surviving party to a contract with respect to matters that occurred in the lifetime of the deceased party only where there is *568
a person living at the time of the trial between whom and the surviving party the matter relevant to the issue occurred, or if such relevant matter occurred in the presence or hearing of such other living and competent person, and where such person is competent to testify and actually did testify to such matter at the trial. It was held in Roth's Estate,
When at the close of the plaintiff's evidence a motion for a compulsory nonsuit was made, the application should have been granted both because of the admission of the incompetent evidence and the admission of testimony in support of a contract not pleaded nor referred to in the statement of claim. As the attention of the court and the counsel for the plaintiff were called to the subject and no application was made for an amendment of the statement, the defendant was not bound to reply to that which he was not summoned to answer. It was said in Wilkinson v. Welde,
The judgment is affirmed. *570