Bogle's Executors v. Kreitzer, 46 Pa. 465

Bogle's Executors v. Kreitzer

46 Pa. 465 | Pa. | 1864

The opinion of the court was delivered, February 15th 1864, by

Thompson, J.

It is impossible to sustain this judgment. The verdict was general, and so is the judgment, while of the three counts in the declaration two were against the executors on their personal promise, and one was upon the promise of the testator. These counts, as was said in Seip v. Drach, 2 Harris 352, of a very similar narr., are incongruous, requiring different judgments, the first two de bonis propriis, and the other de bonis testatoris. That case also shows that charging the executors upon their promise as executors, is no more nor less than charging them personally. That case covers the whole ground in this so far as the judgment is concerned, and demonstrates that such a judgment is not sustainable.

I have no doubt but that if there had been a special finding on the last count, or there had been no evidence on the two first, and the judgment had been specially entered on the last, it would have been good now, since the days of technical accuracy have measurably passed away, and given place to substance without much regard to form: 10 Barr 372; 2 Harris 352; 6 Casey 75. But this was not the manner in which the case was disposed of, and consequently there was error.

So, too, we think the court erred in what they said about the receipt of the 7th April 1858. It was a receipt in full by one of the partner plaintiffs for the very subject-matter in dispute, viz., Hubbs’s beef bill assumed by the testator. Its effect was not impeached by any evidence whatever; but the learned judge, ■while he agreed it was a receipt in full, put an inquiry to the jury, whether it might not have been applicable to some other claim of the plaintiffs. This was inviting them to disregard it, if they could imagine it to belong to some other matter between the parties. This was directing them to a subject of inquiry of which there was no evidence, and this was undoubted error.

We also think there was error in the manner in which the order, and the proof in regard to it, was submitted to the jury. I am unable to discover, in such a state of testimony as existed about the order, how to justify the court in asking the jury the question they did. It was a very significant indication, I think, to the effect that if the testimony of the witnesses, Marr and Graham, was to be regarded, there must be a recovery by the plaintiffs. After referring to'Marr’s testimony about the order, which certainly did not prove an acceptance by Bogle, or a promise to pay it or any other sum, the learned judge put the inquiry, “ If Bogle was not bound to pay for the meat delivered *470by the plaintiffs, how do you account for the declarations as proved by Graham and Marr ?” This, surely, was to convey in the strongest possible way to the jury the idea that their testimony was inconsistent with any hypothesis but that of liability for the amount of the order. Their testimony has so little of this import in our judgment, that without more, we think no recovery should have been permitted upon it. Graham fixed no amount of indebtedness, nor gave any data from which it could have been ascertained, and Marr negatived, if we understand it, any idea that the amount contained in the order was due. Upon the testimony of these witnesses no claim was established. It applied as well to one dollar as to*one thousand. A plaintiff is bound to give proof as well of the amount of his claim, or the means by which it may be ascertained, as that it exists at all. A jury is not to grope in the dark in regard to amounts, any more than as to the existence of the contract. We think the instruction in regard to the order was insufficient for the case, and misled the jury, and there was therefore error in regard to it.

There was no error in rejecting the question proposed, whether the witness would believe Graham on oath ? The rule with us has, I think, been uniform, that prior to such a question it is necessary to lay grounds for it by the inquiry, whether the witness is acquainted with the witness intended to be impeached, and with his general reputation for truth and veracity in the neighbourhood in which he resides — “ What is that reputation ?” If the preliminary questions be answered affirmatively, and the last that his character is not good, then the question may bo put, “ from your knowledge of his general reputation for truth, would you believe him under oath?” This is substantially the course of examination required with us in such cases, and it has acquired the binding force of a rule: 11 S. & R. 199. Tested by this rule, the defendants had not pushed their inquiry far enough when they proposed their question; hence the court committed no error in overruling it. But for the reasons given, this judgment must be reversed.

Judgment reversed, and a venire de novo awarded.