176 Pa. 28 | Pa. | 1896
Opinion by
In 1871 the Lehigh Coal & Navigation 'Company, being then the owner in fee of the lot in dispute, agreed with Bernard Barron to sell and convey the same to him. The deed in consummation of their agreement was made on the 19th of December, 1871, and delivered to the grantee on the 23d of
It was alleged on the trial that there was a condition in the deed to Barron to the effect that if he or Ms assigns should sell liquor on the premises at any time, with or without a license so to do, the deed should be void and the title to the lot, with the improvements upon it, should revert to his grantor. This deed was not recorded, or produced on the trial. Barron testified that he gave it to Evans when the latter bought the property, and Mrs. Evans testified that her husband made her the custodian of all his papers and that the only deed of the property he brought to her when he concluded his purchase, or at any other time, was the deed from Gallagher to him. As the Barron deed could not be found, the plaintiff was compelled to rest its contention in regard to the alleged condition in it upon oral testimony. The witnesses called to support this contention were George S. Ruddle and Bernard Barron; the former was the plaintiff’s real estate agent, and the latter was its grantee. The testimony of Ruddle was to the effect that there was a printed condition in the Barron deed which annulled it if the grantee or his assigns should at any time sell liquor upon the lot therein described. When asked how he knew that the condition was not written, he replied, “ I know from my recollection and the forms of deeds I have had from that time to this.” Whether his recollection was mdependent of or dependent upon “ the forms of deeds ” he referred to he did not say. But, as he was testifying in 1895 to the contents of a deed he delivered to Barron in 1872 and that he had not seen since, it may be reasonably inferred that his recollection was materially affected
The counsel for the plaintiff requested the court to say that upon the evidence of Ruddle and Barron “ the verdict of the jury must be for the plaintiff.” Whether the court erred in refusing to say so is the only question raised on this appeal. As we understand the contention made in support of the appeal, it is that, in any case in which the evidence given by plaintiff’s witnesses is un contradicted and, if believed, would entitle him to recover, it is the duty of the court to instruct the jury that their verdict must be in his favor. We think there is no warrant in any of the decisions of this court for such a proposition. In Reel v. Elder, 62 Pa. 316, Shakswooc, J., in delivering the opinion of the court said: “ However clear and indisputable may be the proof when it depends upon oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence.” In Grambs v. Lynch, 20 W. N. C. 376, it was held by the court below that “ where a witness goes upon the witness stand and swears positively to a fact and that fact is not contradicted, it is established and there is nothing to submit to the jury.” When the case was brought to this court the judgment was reversed in an opinion by Paxson, J., who, referring to this ruling, said : “ This is an erroneous statement of the law. There is the question of the credibility of the witness and this
We are unable to discover anything in the above cited cases that lends any support to the plaintiff’s contention on this appeal. There is a broad and plain distinction between a direction to find for the defendant where the plaintiff’s evidence if believed is insufficient to sustain his claim, and a direction to find for the plaintiff when his case depends entirely upon oral testimony.
We find nothing in the record of which the plaintiff has any just cause to complain. The case was clearly for the jury upon all the evidence in it.
Judgment affirmed.