255 Pa. 78 | Pa. | 1916
Opinion by
This was an action of trespass brought by D. W. Brendlinger and S. W: Hess against the Yinton Colliery Company, to recover damages for injury to a'water power and mill property, alleged to have resulted from the deposit by defendant of refuse matter and foreign substances in
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When the case was called for trial, plaintiffs moved to amend the pleadings by withdrawing their statement, and substituting therefor another, in which S. W. Hess was named as sole plaintiff. The amendment was allowed. It was identical with the original statement, except the averment that S. W. Hess was sole plaintiff, and it was also alleged that, by article of agreement with D. W. Brendlinger and wife, a copy of which was made part of the statement, he had “acquired a right to and in” the mill property and had been in possession of the same since April 1,1909, and that the trespasses complained of had begun in April, 1909, and continued until the time of bringing suit. The trial resulted in a verdict for the plaintiff, and, from the judgment entered thereon, defendant has appealed.
The first assignment of error is to the allowance of the motion to file an amended statement. If the averment in that statement is true, that plaintiff had acquired title to the real estate therein described by an article of agreement with the former owners, and had entered into possession on April 1,1909, and had continued therein up to the time of bringing this action, he is entitled to maintain this suit. In Richter v. Selin, 8 S. & R. 425, Mr. Justice Duncan said (p. 110) : - “When a contract is made for the sale of land, equity considers the vendee as the purchaser of the estate sold, and the purchaser as a trustee for the vendor for the purchase-money. So much is the vendee considered, in contemplation of equity, as actually seized of the estate, that he must bear any loss which may happen to the estate between the agreement and the conveyance, and he will be entitled to any benefit which may accrue to it in the interval, because by the contract he is the owner of the premises to every intent and purpose in equity.” The above language was repeated by Justice Rogers in Robb, Admr., v. Mann, 11 Pa. 300, 304. To the same effect are Ives v. Cress, 5 Pa. 118, 121; Siter, James
The second assignment is to the action of the trial judge in sustaining objection to defendant’s offer to put in evidence plaintiff’s original statement of claim. We think the statement was competent evidence, and that it should have been admitted. The present plaintiff was a party to the suit as originally brought, and the statement was signed and filed by counsel on his behalf and became part of the record. It contained an averment that during the years 1906,1907 and 1908 large quantities of sediment, sulphur, &c., had been deposited in plaintiffs’ dam and mill race, and had damaged the mill and machinery. By the amended statement claim was made only for damages suffered after April 1, 1909. It was competent for defendant to show by the admissions contained in the original statement filed on plaintiff’s behalf, that the trespasses, of which complaint was made, had been occurring during a period of three years before plaintiff acquired his interest in the mill property, and that a large part of the deposits had been made before he agreed to purchase or went into possession. Plaintiff went to trial in the first place on this statement, and testified in support of the claim therein set forth. It appears from the evidence that he afterwards testified that in 1909 the dam was free from all deposits or obstructions, and that he first found obstructions there in July, 1910. The original statement was competent evidence to show admissions by the plaintiff that there were obstructions in the dam prior to 1909. For the injuries resulting therefrom, plaintiff would have no right of action. The admissions in the original statement were, therefore, of importance to defendant. In Truby v. Seybert, 12 Pa. 101, it was said (p. 103), citing from Greenleaf on Evidence: “A record......is admissible against one of the parties ......as containing a solemn admission or judicial declaration by such parties in regard to any particular fact. But in these instances, it is received, not as an adjudi
In the third assignment, complaint is made that the trial judge refused to admit in evidence the testimony of plaintiff at a former hearing. Plaintiff had then testified that in November, 1909, he had told Brendlinger that h'e would throw down the agreement of sale as the property was depreciating; that the agreement of sale was to be annulled, and that after that date the management between them was a partnership. If this was true, it would have affected plaintiff’s right to recover in his individual capacity. Plaintiff admitted, however, on cross-examination that he had in the main testified as stated above, so that in this way the defendant brought to the jury knowledge of the former testimony of plaintiff, and while the notes of testimony should have been admitted, yet the error was probably harmless. Counsel for appellee suggest that the testimony was properly excluded, because the stenographer’s notes were not- proven. But the objection was not made on this ground and any defect in the method of proof must be considered as waived.
The fourth assignment is to the action of the trial judge in sustaining plaintiff’s objection to defendant’s offer of certain testimony of D. W. Brendlinger, one of the original plaintiffs, given at a former hearing. It appears
Without taking up in detail the other assignments of error, it is sufficient to say that we find in them nothing of substantial merit. But, as already indicated, the second and fourth assignments are sustained, and the judgment is reversed, with a venire facias de novo.