237 Pa. 253 | Pa. | 1912
Opinion by
In the court below, the only question in dispute was, as conceded by both parties, whether the defendant company had made a contract with Krimmel, the plaintiff, to pay him the balance due for brick already laid under the Dill agreement and for laying the brick to com
We agree with the learned court below that whether the receipt and mechanic’s lien contradicted the plaintiff’s position that the defendant company had entered into an agreement with him to pay for the brick work was an argument to be addressed to the jury, and was not a sufficient reason for the court to direct a verdict for the defendant. The receipt given by the plaintiff was “in full payment of account to date,” but it was conclusively shown that it was given for money due the plaintiff on a contract made by Moss with him to do work outside that to be done under the Dill contract. While the court submitted for the jury’s consideration the receipt as bearing upon the question of whether a new contract had been entered into by the parties, it
There was no harm done the defendant by excluding the -Dill letter. We can see no good reason under the evidence why the plaintiff: should recover for one portion of his claim and not for the other. By the contract-on which he relies, the defendant company agreed not only to pay him for the work yet to be done on the buildings but also to pay him the money yet due bim from the Dills. The contract is entire, and if the plaintiff has failed to establish any part of it he has failed to establish the whole agreement. The amount recoverable under the new contract would be the Dill deficit and the money to be paid on the subsequently completed work. It was, therefore, immaterial what time the letter was written notifying the defendant company that the Dills were unable, by reason of unexpected financial developments, to proceed with the work.
In the condition of the record we cannot sustain the fifth assignment alleging error by the court in refusing to withdraw a juror by reason of the use of improper language by plaintiff’s counsel in. addressing the jury. When the objection was first made the learned judge announced that he would withdraw a juror unless the plaintiff’s counsel stated there was no evidence upon the subject of the remarks complained of. No definite ruling was then requested by defendant’s counsel nor was any exception taken. Subsequently in his address to the jury a remark was made by plaintiff’s' counsel, which the defendant’s counsel asked bim to withdraw. The plaintiff’s counsel then said he would modify the statement and did so. The defendant’s counsel made no further, objection, made no request for the withdrawal of a juror, and no exception was
In several recent cases, we have reversed because of improper remarks made by counsel to the jury, and we have no intention of relaxing the rule announced in those cases. But if opposing counsel desire to invoke the protection of the trial court they must act promptly and call the court’s attention to the objectionable language and give it an opportunity to deal with the offender as the facts may require. This is only fair to the court. If it then declines to act, the injured party should insist on his objection and take an exception to the ruling. He cannot, by his silence, be permitted to leave the impression that he is satisfied with the court’s action in the premises, and after the rendition of an adverse verdict, have the verdict set aside, or the judgment thereon reversed by the appellate court. In the case at bar, the court would have withdrawn a
The judgment is affirmed.