2 Watts 401 | Pa. | 1834
The opinion of the Court was delivered by
The firsterror assignedis in the charge of the court, and their answer to the defendant’s first and second points. The question is, whether the court were right in leaving it to the jury to determine as matter of fact, how far the defendant had notice of the agreement of the 1st of November 1823, and its indorsement, or whether they ought not to have instructed the jury as matter of law, that the defendant had such notice. By the 'deed of the 25th of August 1824, the plaintiff conveys to the defendant a moiety of the brick church and lot of ground, which had been conveyed to him by the sheriff of Northumberland county on the 26th of November 1823, together with all and singular the rights, liberties, privileges, hereditaments and appurtenances, in as full and ample a manner and with all the same rights and conditions, authorities and agreements, with
The second and third errors assigned are in the instructions of the the court, “ that the action of covenant is for damages and not for a specific execution of the contract, and if the plaintiff is entitled to any thing it will be to damages ; that if possession had been taken under the contract, and is still held, nothing short of the purchase money agreed upon would do justice ; if adverse possession bad been taken before the execution of the covenant, and is still held, justice would seem to require the same measure of damages; but if the defendant only took possession as a co-tenant of the property, the jury may take into view the paper he has read and filed, disclaiming to hold adversely, and acknowledging the equal right of the plaintiff.”
Taking the whole of this part of the charge together, the princi
But the latter part of the instruction-, relative to the paper read and filed by the defendant, requires a more particular examination. In this action of covenant, the plaintiff, agreeably to the doctrine of Huber v. Burke, sought a specific execution of the contract, by a recovery of the purchase money, on the ground that the defendant had taken possession of the property contracted for. The defendant contended, that he had not taken possession either under the contract or adversely, but as tenant in common in right of himself and the plaintiff; and it was a question of fact, on the evidence given, in ■what character the defendant took possession. If the evidence established that the defendant had taken possession merely as co-tenant, his case was made out so far as respected the plaintiff’s claim for the purchase money, and the paper in this respect could have no operation whatever. Could it have any effect on the amount of damages for breach of contract short of the whole purchase money ? The defendant’s disclaimer of adverse possession and recognition of the plaintiff’s title to a moiety, cqnferred no benefit on the plaintiff: it neither added new strength to his title, nor diminished the loss he may have sustained by this breach of contract. If the plaintiff failed in compelling payment of the purchase money, and enforcing a specific execution, on the ground that the defendant had not taken possession as alleged by the plaintiff, the verdict itself would be conclusive evidence that the title remained in statu quo, and that the plaintiff could dispose of his interest to another purchaser. It would seem that though disguised under the appearance of doing justice to the plaintiff’s title, the permission to file this paper was in effect allowing the defendant to qualify his own acts, and to make evidence for himself. It was calculated to bias the minds of the jury and divert them from the evidence. The permission to a party to file papers during a trial, affecting the event of the matters in issue, may lead to great irregularities and abuse. It may enable him to vary the position of the cause by an act of his own, possessing no defined character, involving no legal responsibility, and taking the opposite party by surprise. It tends to embarrass the regular course of trial. It is the duty of the court to discountenance a practice of this kind, and it is error for which the judgment will be reversed, if exception is taken to it at the time of being offered, or when sanctioned by the charge of the court.
The defendant’s fourth point, “ that if the jury believed the defendant did not get what he expected to get when he entered into this agreement, then no damages could be recovered,” was answered by the court in the affirmative, without sufficient attention to its language. It need hardly be said, that the mere expectation of one
Judgment reversed, and venire facias de novo awarded.