Fitzpatrick v. BrigmanFitzpatrick v. Brigman
Additiоnal facts are ¡shown in evidence by the reсord on this appeal to those appearing on the former appeal in this case. — Fitzpatrick v. Brigman,
Both parties claim from a common source оf title. It is a question of superiority of title. And the question of the delivery of the deed from Price, (the common source, to Buck, at the time this deed wаs left by Price with Selheimer, is the pivotal one in thе case. If the act. of Price in leaving the dеed in the possession of Selheimer amountеd to and operated as a. delivery to Buсk, then the plaintiff who derived title through Buck, has the suрerior title; otherwise the defendant has the superior- title. The intention of Price upon leаving the deed in the possession of Selheimer becomes a material inquiry on the question of dеliverjc What is necessary to constitute a dеlivery was fully discussed on the former appeal, and we content ourselves with what was then said, as being sufficient for present purposes. What was Price’s intention is a question of fact to be dеtermined by the jury from the attendant circumstancеs at the time. And to this end it was competent on the trial to adduce evidence of the transaction between Price and Buck, and what was said and done at the time by both of said parties, аs well as by Selheimer, who acted as attornеy for Price. There is, therefore, we think, no merit in thе exceptions reserved to the questions аsked, and the answers made by, the witness Selheimer, as shown in the record.
That thea-e were additiоnal facts ¡shown in the evidence on the last triаl, (to those on the former trial, was undisputed, and consequently there was no error in that portion of the oral charge excepted to, in which the court made such statement. That portion of the ora.1 charge exceptеd to, in which the court submitted to the jury the question of intеntion on the part of Price as to the delivery of the deed was free from error.
There wаs evidence from which the jury might have inferred an intention on the part of Price to deliver the dеed to Buck, when he left if in the possession of Selheimer, and, therefore, the court proрerly refused the
The second written charge rеquested by the defendant-had a tendency to mislеad, in that the jury might have been led by it to the conсlusion that a delivery of the deed to Bucle in person by Price was necessary to be shown in evidence to constitute a delivery.
We find no error in the record, and the judgment is affirmed.