31 Pa. 193 | Pa. | 1858
The opinion of the court was delivered by
That the advertisement of February 10th 1851, was improperly received in evidence, is too apparent to require discussion. The contract between the parties had been proved by
The error in receiving the advertisement was followed by another more important, namely: the admission of evidence to prove “ that the company did not furnish, in the summit level of their canal, a supply of water sufficient to enable the boatmen of the plaintiffs to make trips in ten or eleven days; and that they could have furnished a sufficient supply, if they had thought proper to do so.” This, the plaintiffs alleged, was a breach of the contract, basing their allegation upon the assumption that the contract bound the defendants to keep up a sufficient supply of water at all seasons. We have not been able to discover that any such liability was assumed by the defendants, either in the printed contract, or in the advertisement, had that been admissible in evidence. Both parties had been familiar with the condition of the canal during the previous year, and that familiarity probably induced the contract. Into that contract no stipulation was introduced requiring the company to furnish means for supplying water additional to those then existing, or so to construct their canal, that a trip could be made, at all seasons, in ten or eleven days. Even
It is, however, strenuously urged, that the errors which we have noticed, were cured by the subsequent action of the court. After the testimony and argument had closed, and when the learned judge proceeded to charge the jury, he instructed them that the printed boating contract was the contract of the parties, and that all advertisements, representations, proposals, or negotiations were merged in the agreement so made; and that the rights and liabilities of the parties were to be determined under it. He also instructed them, that they could not give damages for detention by low water, and for the want of an adequate supply in the summer of 1851. This, it is argued, purged the mistake committed in the admission of the evidence.
It is to be observed, that the evidence was not withdrawn from the jury. They were not told, to give it no consideration; nor were they instructed, that it was not properly before them. They were only directed, to disallow the damages claimed for detention by low water. In fine, the jury were simply restrained from making the illegal evidence an independent ground of recovery. And even this caution was not given, until the illegal and pernicious evidence had been permitted to work its impression, during the whole progress of the trial.
We cannot think this an adequate remedy for the mischief. It is impossible to examine the record without being convinced, that the jury did not disregard the illegal evidence, and that the plaintiffs have been permitted to recover large damages, ostensibly for one cause, but truly for another, for which the defendants are not liable. Undoubtedly, when a mistake., has been made in the admission of evidence on the trial of a; caü'se, it may subsequently be rectified. It may be withdrawn by the party who has given it, or the court may withdraw it, and positively instruct the jury to disregard it — to discard it from their view. In such a case, it is the duty of the court to see to it that no mischief is done; that the illegal evidence be withdrawn, wholly withdrawn, and withdrawn for every purpose. It was ruled in Shaeffer v. Kreitzer, 6
We perceive no other error in the record. Though the evidence offered and excepted to, in the third bill of exceptions, was inadmissible, yet none seems to have been given under that offer that
The fourth assignment of error is not sustained.
Judgment reversed and a venire de novo awarded.