| Pa. | Feb 9, 1885
delivered the opinion of the court, February 9th, 1885.
■ It may be that the jury, in making up their verdict, failed to allow defendant below the full amount of damages to which he was justly entitled under the evidence; but if they did, it was not the fault of the court. In submitting the case to the jury, the learned judge assumed there had been a breach of the contract by plaintiff below in failing to furnish, a considerable portion of the bottles called for by the contract; and that defendant was entitled to set off the damages fie had sustained thereby. As to the measure of damages, the instructions were quite as favorable to defendant as he could reasonably ask, and no exception to the charge was taken by either party. .The only' question of fact involved in the case was
. There appears to be nothing in the record -on which to base the first assignment of error, unless it be the question complained of in the third specification. This being so, the assignment is clearly not according to the rule which provides, “ Where the error assigned is to the admission or rejection of evidence, the specification must quote the full substance of the bill of exceptions or copy the bill in immediate connection with the specification.”
The second assignment is eveh more objectionable than the first. It is not only contrary to rule, but it is misleading, in that it does not disclose the hearsay character of the evidence by •which it was proposed to prove the alleged fact. The offer, as we find by reference to the notes of trial, was to prove by the witness Haldeman, “That he went down to plaintiff's place, pending the filling of the contract, to hurry up the bottles after the accident had happened, and was told by one of plaintiff’s agents (Voorhees) that the non-fulfilment of the contract was due to the negligence of Mr. Madden, plaintiff’s superintendent, in not filling defendant’s order before the accident.” If this offer had been quoted in the specification, as the rule contemplates, the incompetency of the testimony, as the baldest species of hearsay, would have been manifest.
It is no answer to say'that the offers of evidence referred to in these specifications will fulty appear by reference' to the bill of exceptions or some other part of the record. In connection with .defendant’s plea, which is usually formal, the specifications of error constitute the pleadings upon which the judgment of this court is pronounced; and hence it is necessary that they should be complete in themselves without reference to other parts of the record. . After judgment, the record proper of the court below is remitted, and nothing remains of r.ecprd hpre except the pleadings and the judgment entered thereon.. -Being contrary.to .rule, .the first and second assignments of error are dismissed.
■ The third assignment is not sustained. The question complained of was not leading, nor was there anything in the-answer thereto that was calculated either to mislead or unduly prejudice the jury. It does not appear that the testimony was elicited for the purpose of excusing the admitted nonperformance of contract on the part of plaintiff below, nor was it used for any such purpQse. The breach of contract, as, claimed by defendant was virtually admitted, and the fact, as we have seen, was assumed by the court. The only question
Judgment affirmed.