37 Pa. 87 | Pa. | 1860
The opinion of the court was delivered, by
— Everything material in this case was passed upon in Zook v. Shoenberger’s Executors, 10 Casey 24. The contract was the same as in the present case, and the only substantial difference consists in one of the parties being different. The present is a suit by another of the heirs of Mrs. Hackman, against the executors of Dr. Shoenberger, on a promise to pay an additional sum of money for a release of an interest in certain property in Pluntingdon county. The merits of the case seem to have been fully investigated: each party giving such evidence as
The first exception is to the testimony offered in proof of the contract. The principal ground of objection to it was a variance between the date in the narr. and the proof offered — the latter being subsequent in time to the former. In declaring on a verbal contract, time and place are generally not essential to be proved as laid, but of course must be laid as existing before the time stated in the narr. Here the time spoken by the witness was subsequently to the cause of action as laid; he did not, however, speak with certainty as to the date, but gave the substance of the contract otherwise as laid. The court were right in receiving the evidence, for the party might, by subsequent proof, correct the statement. But if not, the narr. might have been amended to correspond with the date as testified to, it being long anterior to the time of bringing the suit. The defendant well knew this, and did not rely on the variance, but gave evidence in reply, and, failing on the merits, now claims a reversal on the ground of a variance. It is plain that they were not prejudiced by it. The specific ground of objection in fact does not seem to have been taken. If it had been, the matter was amendable, and it will be regarded here as amended: Roop v. Roop, and Ward v. Ward, 11 Casey; Wampler v. Shisler, 1 W. & S. 365; Miller v. Weeks, 10 Harris 89.
We cannot reverse on this ground.
The next objection is to the testimony in regard to the execution of a release without its production, and without having laid grounds for the introduction of secondary evidence in regard to its execution. It was not the contents which were offered to be proved: it was simply the act of signing a paper called, and supposed to be, a release. This act, as averred in the narr., was the consideration for the promise to pay, but the consideration was not involved in the issue trying. It was, therefore, a collateral matter to the issue, and might be proved like any other fact. The non-production of the release did not imply the withholding of evidence, which would work against the plaintiff, for its contents were not involved by the issue, but if produced, the signatures would have been proved either by some one having seen them made, or who knew the handwriting of the signers: or it might have stood as authenticated by the acknowledgment. But the fact of signature being the only fact sought to be proved, there being no dispute about the identity of the instrument,
The next matter to be noticed is the instruction of the court in reference to the deed of the 20th of July, 1832, from Abraham Hackman and wife, to Dr. Shoenberger. The plaintiff in error claims that it was delivered as an escrow to Abraham Hackman to be delivered to Dr. Shoenberger on his paying the consideration-money, and that a delivery after the death of his wife passed her estate. We entirely repudiated this view, in the case of Zook v. Shoenberger’s Executors, already cited, and have but little further to add on the subject now. Conceding that it was
We do not think it material to discuss the other assignments of error; suffice it to say, we discover nothing in any of them, nor in any part of the case, that calls for correction. It would have relieved us somewhat if the counsel for the defendant in error had favoured us a little more at length in his paper-book with his views and authorities on the points raised by his adversary.
Judgment affirmed.