1 Sadler 275 | Pa. | 1886
Opinion bi
The counsel for the plaintiff in error has printed some of his own testimony and has entirely omitted the testimony of the defendant in error. We, therefore, are disabled from verifying the allegations made in the argument respecting the testimony which is not printed.
We must assume the entire correctness of whatever the learned court below said about the evidence, which does not appear in the paper book. . . '
The court refused to affirm the defendant’s first point “for want of evidence to show any attempt to forfeit the lease on reentry by McClure after the defendant Joyce had taken possession of the quarry and excluded the plaintiff.”
A.s the evidence is not all printed, it is impossible for us to say there was any error in this answer. Joyce does admit that Lynch came to the quarry and wanted to have possession a number of times while he, Joyce, was in possession and talcing away material, and that he offered Lynch $20 to get rid of him.
As we are not referred to any testimony showing any attempt by McClure to forfeit the lease before this, we are bound to infer that the answer of the court to the defendant’s first point was entirely correct. As to the second assignment, it was, of course, correct for the court to say that the question of damages was for the jury.
In regard to the third assignment, it must be said that Joyce admits that Lynch came to the premises and told him of his lease from McClure, and said he wanted to go to work in April or about May 1, and, as this was several weeks before the notice of May 20, .it is difficult to see the relevancy of the rejected offer of proof covered by this assignment.
It would seem that McClure did not regard it as avoided until May 20, 1883, but Joyce was in possession a considerable time before that and refused to give Lynch possession, and, as between them, the manner in' which the lease was obtained from McClure was quite immaterial, unless McClure himself, on that very account, sought to avoid it prior to possession taken’by Joyce; and of this there is no evidence.
There is no merit in the fourth assignment. As Lynch did not have possession because Joyce did have it, of course he could not take out stone,- and he certainly was not bound under the lease to accept a divided possession.
So' far as the evidence is printed, it confirms the correctness of the remarks of the court covered by the fifth assignment If the unprinted testimony tends to prove any different result, it is the misfortune of the plaintiff in error that he has omitted it from his paper book. Wo suspect, however, that such is not the case;
The observation made by the learned judge, to which exception is taken by the sixth assignment, is nothing but a truism, and we cannot- regard it as misleading in any sense.
It is impossible to understand how the defendant could be harmed by the language covered by the seventh assignment.
The only matter of doubt suggested by it was one which would, if adopted by the jury, have tended to diminish the damages, and the language of the court indicated a solution of the doubt tending unfavorably to the plaintiff. Th eighth assignment relates to the subject of damages; and, as the court in this portion of the charge allowed only the lowest measure of damages which the plaintiff was entitled to recover, if at all, the defendant was benefited instead of harmed by the instruction given.
Judgment affirmed.
