79 Pa. 46 | Pa. | 1875
delivered the opinion of the court, October 13th 3875.
The rejection of the proof which the defendant below proposed to make by the testimony of Daniel W. Seiler, one of the plaintiffs, on cross-examination, is the ground for the first and second specifications of error. The facts themselves were both relevant and material. They were offered to show, in substance, that when the agreement of the 30th of July 1867, for the transfer to the defendant and Michael J. Barry of the original contract of Dougherty, Michael Barry, Malone and Seiler with the Western Maryland Railroad Company was made, the plaintiffs were aware that payment by the railroad company was about to be suspended. But it does not follow that the evidence was admissible on cross-examination. The suit was on a note given on the 30th of July 1867. The suspension of payment did not occur until some weeks afterwards. The admission of proof that the plaintiffs had knowledge of it would have involved the admissibility of proof of the fact of the subsequent suspension itself. And to make these details intelligible, and to show their relevancy to the issue, it would have been necessary to exhaust the knowledge of the witnesses in relation to the effect on the interests of the defendant which the suspension produced. The whole defence would have been interjected into the case upon the cross-examination of the first witness for the plaintiffs, and the presentation of their rebutting evidence would have been rendered inevitable. By such a method of development the trial of the cause would have been only confused, hampered and delayed. The evidence could have been offered with perfect safety on the part of the defendant in chief. By the 2d section of the Act of April 15th 1869, Mr. Seiler could have been required to testify “ as if under cross-examination.” It is not apparent how, by pursuing legitimate forms, the defence would have been subject to any embarrassment, or have incurred the loss of any due advantage. The offers were properly rejected.
At the stage which had been reached when the testimony specified in the third and fourth assignments of error was offered, the ruling of the court in rejecting it was right. The agreement of the plaintiffs of the 3d of October 1867, providing that the note in suit should be withdrawn if the defendant could show that he made no money out of the July estimate paid by the railroad company, had been given in evidence. The proposition of the defendant to prove that suits had been brought against the original contractor; that the defendant undertook to settle them and procure releases from the railroad company and the sub-contractors, and that this was done under an arrangement of which the paper of the 3d of October 1867 was part, amounted to nothing more than an
The fifth assignment is based on better grounds. The defendant proposed to prove that “ on the 3d of October 1867 there was a new contract made between the parties, by which the plaintiffs agreed to release or discharge the defendant from the note in suit, in consideration of which the defendant agreed to release, and did release, to the railroad company, his interest in the original contract of construction, at the request of the plaintiffs.” That the scope of this offer was inadequately apprehended, is apparent from the record. The counsel for the plaintiffs objected to it because it was “not offered to show that the plaintiffs requested the defendant to release the railroad company from its contract for construction;” and the court rejected it on the ground that “the subsequent arrangement of the defendants and the company was of their own mere motion, and without the plaintiffs’ request.” It is probable that if the testimony specified in the fourth, sixth and seventh bills of exception had been presented in a single offer, exhibiting in symmetrical form the entire theory of the case which the defendant set up, the controversy would have been finally determined in the court below. There is no doubt that the evidence to establish a fresh contract in October 1867 ought to have been received. And the reception of that evidence would probably have brought into view the details of the new arrangement which, when separately presented, had been properly excluded. Enough can be gathered from the record to indicate at least that on the 3d of October 1867, embarrassments had been encountered in the efforts of'the defendant and his partner to perform the contract which they had assumed, and that some suits had been
It is no answer to the general objections of the defendant to say that the agreement of the 3d of October 1867, for the withdrawal of the note, was a conditional promise resting upon an executory consideration, and that a failure to show a loss of profits on the July estimate left the consideration unexecuted. This might be so if the entire contract consisted of the instrument in question. But it is alleged that this was part of the contract only, and that the agreement to release the railroad company, which was the consideration for the instrument itself, has been performed. As the offer of proof in regard to profits was rightly rejected when it was
Judgment reversed, and venire facias de novo awarded.