Irwin v. Nolde, Appeal, No. 180

Appeal, No. 180 | Pa. | Oct 1, 1894

Opinion by

Mb. Justice Fell,

This was an action of trespass to recover damages occasioned to the plaintiff by the defendants taking forcible possession of two fields of a farm which he had rented of a society of which one of the defendants, Nolde, was or claimed to be a trustee, and the other, Miller, a tenant under him of the land in dispute. The action was commenced in 1880, and both of the defendants died before the trial in 1893.

The first and second assignments of error relate to the admission of the testimony of plaintiff, who was objected to as a witness, to matters occurring during the life of the defendants and to conversations had with them. He was allowed to testify, the reason stated by the learned judge in support of his ruling being that in actions of trespass and tort either party may be a witness notwithstanding the death of the other, and that “it is only in cases of contract where one party to the contract is dead, by the policy of the law the other party is not allowed to testify.”

We see no valid ground for the distinction made. The plaintiff would not have been a competent witness before the act of 1869, and he came within the letter of the proviso of Sec. 1 of that Act as to “ actions by or against executors, administrators, or guardians,” and he was excluded by Sec. 5, Clause E, of the Act of 1887. The act makes no distinction between different classes of civil actions.

Nolde, as a de facto trustee, was a party to the thing or contract in action, a right connected with the property; and the plaintiff was a surviving party as well as a person whose interest was adverse to the right of the deceased party. He was within the letter and spirit of the excluding clause of the act, and was clearly incompetent to testify.

The twelfth assignment of error must also be sustained. It appears to have been the plaintiff’s intention to plant with tobacco one of the twelve acres from which he was evicted, and his claim for damages included what -he might have made out of this crop. The general instruction upon this subject was not objected to, and it was substantially accurate; but the answer to defendants’ fifth point left it open to the jury to guess at the value of a crop to be raised, and after deducting the supposed cost of the labor necessary to plant, cultivate and harvest it, to charge the difference to the defendant, and this course they seem to have pursued. This crop had not been planted, the ground had not been prepared for it, and nothing had been done in relation to it. It had no existence, it was a mere possibility. The plaintiff might have raised the crop elsewhere, and might have been better off if he had not attempted to raise it at all. As to this item of claim, no crop was destroyed or taken away from him. He was deprived of the use of one acre of ground, and to the extent to which his leasehold was lessened in value by that fact he was entitled to recover, if entitled at all.

As the case will go back for trial, the sixth assignment of error should be noticed to say that it was competent for the defendant to show that there had been a settlement of this suit in 1880, but the manner in which this was attempted to be shown was open to objection. It does not appear upon what ground the objection to the question was made, but if there was any valid ground it will sustain the ruling. It was not competent for the witness to testify as to the understanding of other parties. He should have been permitted to testify as to what was said and done by them. It was open for the defendant to show that there had been a settlement, but the question asked was improper.

The first, second and twelfth assignments of error are sustained, and the judgment reversed with a new venire.