89 Pa. 470 | Pa. | 1879
delivered the opinion of the court, March 31st 1879.
We find no error in that portion of the charge embraced in the first assignment. The construction placed upon the contract by the learned judge was entirely correct. So far as it related to the hemlock bark, it was an entire contract. It was expressly stipulated therein that B. E. Decker was to .peel all the hemlock timber from eight inches up to the. largest on the farm of the plaintiff below by the middle of March 1874, and start the bark on good roads convenient to the teams. When it was so started and measured in rank, the said Decker was to have one-half of the bark to pay him for his labor. Until he had fully complied with his agreement, he had no title to the bark. It is conceded the title was in the plaintiff when the agreement was made. Decker acquired title, if at all, by virtue of said agreoment. That only gave him title upon compliance with its terms. There is no obscurity in the language, and there is nothing in it to lead us' to the conclusion that Decker was to have title to each cord' of bark as it was peeled. That would enable him to peel only so much as was most convenient, and could be got out to the best advantage. They might have so contracted, but did not. The case of the cropper in Stafford v. Ames, 9 Barr 343, is not in point. There
The second assignment raises'a question that was not made in the court below. The learned judge-charged: “If the defendant had complied substantially with the contract, and the plaintiff had refused to divide the bark and allows him to take any of it, I do not say that he would be without remedy upon the contract, but that is not the question we are trying.” If there is any error here it must be in the words I have italicised. It was contended they excluded from the jury the consideration of any question of equitable defence; that this was a case in.which the doctrine of recoupment would apply in case the jury should find that the defendant had substantially complied with the' contract. There are many cases in actions of tort, in which this equitable principle has been applied to avoid circuity of action. Whether the case in hand comes within the rule, we are not called upon to decide, as an examination of this record clearly shows that the cause was not tried below upon any such theory. On. the contrary, it is manifest the contention there was whether the plaintiff had the title and right of possession to this bark at the time Hartley took it and converted it to his own use. The defendant went to the jury upon that issue, and so far as this record shows, upon no other. No points were put to the court, nor was any instruction asked for in regard to the defendant’s right to recoup. Hence, the learned judge was not inaccurate when he told the jury that the defendant’s remedy upon the contract was “not the question we are trying.” He was merely stating a fact as to which he is amply sustained by the record. A judge who submits a case to a jury in the manner in which it is presented by counsel, ought not to be convicted of error for not presenting it in some other way to which his attention had not been called.
Judgment affirmed.