57 Pa. 397 | Pa. | 1868
The opinion of the court was delivered, by
In the court below this was an action in which the plaintiff claimed that the defendant, as his attorney, had undertaken to collect a mortgage held by him on a farm and tract of land in the state of Delaware; that contrary to his duty, at the sheriff’s sale under the mortgage, he had concealed from the bidders a material fact, which would have enhanced the price; that he had become the purchaser himself at the sale, for a sum much below what it would otherwise have brought; and that he had not accounted for the purchase-money. On the other hand the defendant alleged, and gave evidence tending to show, that he had not been employed by the plaintiff as his attorney, but as his agent merely, and without compensation; that he had engaged counsel in Delaware to sue out the mortgage; that in company with the plaintiff he had at
The 3d error assigned is in admitting in evidence the instrument of writing dated August 20th 1857. There was a subscribing witness, who was examined and said, on being shown the paper, “This is my signature as a witness;” but on cross-examination he added, “ I do not know whether the plaintiff is the person who signed the writing in my presence".” It is well settled that if there is any evidence, however slight, tending to prove the formal execution of a deed, it is sufficient to entitle it to go to the jury: 2 Greenl. Ev., § 295. Pew men can swear positively to the sealing and delivery of an instrument after any considerable time: Piggott v. Holloway, 1 Binn. 442. If, as often happens,- the party is a stranger to the subscribing witness, the same difficulty
■The 4th and 5th errors alleged are in admitting in evidence an instrument of writing executed by the plaintiff, dated December 10th 1857, because it was not legal evidence of a settlement between the parties for the purchase-money of the tract of land, or the payment of the money therein named. If it was not, it would be difficult to see what would be. It was an acknowledgment under the hand and seal of the plaintiff, that he had “ received of William O. Kline the sum of eleven hundred and fifty dollars in full of the purchase-money of the tract of land” in question. A receipt in full is primá facie, but not conclusive, evidence of a settlement. It may be attacked on the ground of fraud, mistake or ignorance of his legal rights by the party who gave it: Thompson v. Faussat, Peters’ C. C. Rep. 185. So if the relation between the parties was one of trust or confidence, such as guardian and ward, or attorney at law and client, it might be insufficient of itself. But this was clearly a question of fact for the jury, and could not be decided by the court by refusing to admit the paper. These assignments of error are therefore not sustained.
There are fourteen other errors assigned to the answers of the court below in the charge to the points presented. It will be unnecessary to consider them separately. It is not and could not be pretended that the law was not correctly stated. But the complaint is that the learned judge below assumed certain facts as proved, of which uncontradicted evidence had been given, without stopping to qualify each instruction by informing the jury that the facts were for them. He did so tell them emphatically once. “ The jury are entitled to take all the evidence into view in determining whether Kline did act in a professional capacity for Hamsher. This and every other question of fact throughout this cause must be decided by the jury. Principles only can be laid
Judgment affirmed.