Lerch v. Bard

177 Pa. 197 | Pa. | 1896

Opinion by

Mr. Justice Dean,

We regret the necessity of sending this case back for retrial. In the late case of Reichenbach v. Ruddach, 127 Pa. 564, some-of the cases on the subject of one-sided charges are cited, and our Brother Gbeen, on page 600, speaking for the court, uses-this language: “We have so frequently held, that giving undue-prominence to the testimony of one side of a case'is error, that a. reference to the cases is unnecessary.” Here, the learned judge of the court below took up and referred to no less than six items-of evidence adduced by defendants, and prominently presented them to the jury for their consideration in determining the main-fact on which the case turned; there was no error in this, if the evidence on the other side in. contradiction had been placed before the jury with the same care, but it was not. Notice the-method of this presentation; the learned judge says: “In determining whether or not William P. Bard intended to borrow the plaintiff’s money in good faith for the defendants, and whether he regarded the note as delivered to the plaintiff, the-jury may consider the evidence.” Then follows the substance of defendants’ testimony, relating to the six material facts tending to establish defendants’ side of the issue. First is stated the proposition on which the case turns, then all the facts tending to establish defendants’ side of it, in the exact language of defendants’ counsel, as lie doubtless argued tbe case to the jury, without indicating that it was other than the language and thought of the court. The plaintiff had given competent evidence tending directly to contradict the evidence of defendants to establish four of the six alleged facts; besides the inferences reasonably to be drawn from the established facts were stoutly and fairly disputed by plaintiff. The learned judge had indicated to the jury in the beginning of the charge the course he intended to pursue, thus: “ The evidence adduced in this trial has been explained and discussed to you by counsel in all its bearings, and I shall not attempt to rehearse it to you. ... I shall confine myself to stating to you the legal rules which it is your duty to apply in your investigations.” But at the conclusion of the charge, he most carefully rehearsed the substance of defendants’ testimony, without even adverting to plaintiff’s which antagonized it. Not to rehearse the evidence on either side, which had been fully explained and discussed by counsel, would have been one mode of impartial instruction; and he had a right to change his mind before the conclusion of the charge, and impartially rehearse the testimony on both sides. But it cannot be said it was impartial to half change his mind and rehearse it only on one side. The frequent declarations to the jury that all the evidence was for their consideration does not cure such instruction. We know, the learned judge of the court below and every lawyer knows how unfavorable may be the impression made upon, generally, untrained thinkers, who must deliberate and form conclusions within a very few hours, by prominently presenting, as the last word to them, only one side of a disputed cause, and this, too, by a judge eminent because of his judicial integrity and ability. Under such circumstances, the probability is, they will assume there is but one side to the case, and that the one to which the court has called their attention specially and at length.

We therefore sustain appellant’s first assignment of error, which practically disposes of the second.

The third assignment is as follows :

Even though William P. Bard had originally possessed authority to borrow money for the partnership without consulting the partners, yet if the jury believe that in the summer of 1890 George W. Bard, one of the partners, informed William P. Bard that he was not willing to be under any liability any longer for money borrowed for the firm, and toot up all the outstanding loans, then the defendants would not be liable for money borrowed afterwards from the plaintiff through William P. Bard as her attorney, without the knowledge of George W. Bard and in violation of his instructions. Answer: Affirmed. .

We think the unqualified affirmation of this point was probably inadvertent error, but error it clearly is. In the first place, there was no evidence tending to show that George W. Bard, one of the copartners, was not willing longer to be hable for money borrowed by the manager for the partnership, while the point assumes there was. According to his own testimony, he was averse to renewing notes in bank with his indorsement, and he took them up. But this displayed only the usual sagacity of business men who are watchful of their credit. There is nothing tending to show that George W. intended to take from the manager the authority to borrow money elsewhere. Nor, even if he had attempted to expressly revoke the manager’s authority, would such attempt have been effective, in view of the agreement and the course of business theretofore pursued, which had been ratified by the partnership. Mere notice by one partner, acting independently of the others, was not sufficient to revoke the long exercised power of the manager; partnership action in some form was indispensable to resolve upon and execute such radical change in conducting the business. This assignment is sustained; the point should have been denied.

The evidence complained of in the fourth assignment should have been rejected for irrelevancy. The defendants were permitted to offer evidence to prove that William P. Bard was counsel for plaintiff in the adjudication of her father’s estate in the orphans’ court. It was utterly immaterial whether he was or not, and it could have no legitimate bearing on the question at issue.

For the reasons given, the judgment is reversed and a v. f. d. n. awarded.