Cox v. Wilson

25 Pa. Super. 635 | Pa. Super. Ct. | 1904

Opinion by

Smith, J.,

Although the assignment in this case contains six specifications of error none can be sustained. The first alleges error in the refusal to grant a compulsory nonsuit; this is not reviewable. The second sets forth a portion of one sentence as erroneous without anything to indicate its bearing or its alleged injury to the defendant; this severance from its proper place in the sentence tends to confusion and is a perversion-of the charge when properly read and .considered and for this reason it is fatal: Irvin v. Kutruff, 152 Pa. 609. The third and fourth specifications are also defective for want of particularity as stated by the trial judge in refusing to affirm these points. Furthermore, these specifications of error are not self-explanatory or self-sustaining: Irvin v. Kutruff, supra. The fifth specification consists of a single sentence extracted from the body of the charge and recited in the specification, and this is open to the objection stated in the opinion of Chief Justice Sterrett in the above case and by President Judge Rice in Brinton v. Walker, 15 Pa. Superior Ct. 449: “ It is always unsafe as well as unfair to the trial judge to select a single sentence from the body of his charge, sever it from the context and undertake to construe it by itself, without regard to what he may have said in the same connection or in other portions of his charge,” an objection peculiarly pertinent here. The sixth specification alleges error in the answer to the fifth point, which is that: “ Oral evidence cannot be used to contradict a written agreement. Answer: The point is affirmed, with the exception that where an agreement needs explanation testimony can be introduced explanatory of it, and oral testimony can be introduced where there is an allegation of fraud, accident or mistake, but that is not this case.” Clearly there is nothing objectionable in this answer. The point seems to have no particular application to the case, except that given to it by the trial judge, and when considered in connection with the facts was entirely proper. Parol evidence, which is explanatory of the subject-matter of the written contract, consistent with its terms and necessary for its interpretation, is admissible: Centenary M. E. Church v. Clime, 116 Pa. 146. Furthermore the oral testimony is not denied and it does not appear in what manner this answer was erroneous. Treating the assignment of errors as the pleadings in this court, after a very careful reading of them (as well as the paper-books) we fail to discover any material error. “ When the appellant has failed to show in an affirmative manner, that error was committed on the trial which was material to the issue, án appellate court will not reverse. ‘To justify a reversal of a judgment after trial, it must be made apparent from the record not only that an- error has been committed, but that it materially injured the party complaining : ’ Allegheny v. Nelson, 25 Pa. 332;” Safe Deposit & Trust Co. v. Motheral, 8 Pa. Superior Ct. 433; Wills v. Hardcastle, 19 Pa. Superior Ct. 525.

Judgment affirmed.