43 A.2d 608 | Pa. Super. Ct. | 1945
Argued April 26, 1945.
This action of assumpsit was brought on an oral contract providing for occupancy and operation by plaintiff of defendant's farm. The terms of the agreement were very much in dispute. It is not clear whether plaintiff was a "cropper" or a "tenant on the shares". (For distinction, see McClarigan v. Matlack,
Plaintiff entered upon the farm in February 1938 pursuant to the agreement. From time to time, the parties met to discuss the details of management. They fell into disagreement. At the end of 1939 the plaintiff *580 refused to leave the farm, claiming that he was entitled to remain on the farm until he received payment for his share from the defendant. Defendant brought eviction proceedings before a justice of the peace which resulted in a judgment in his favor. Plaintiff left the farm May 2, 1940. Thereafter, he brought this action, claiming of the defendant $426.65. Defendant denied liability and filed a counterclaim in the amount of $2,322.53. The case was tried before a jury and resulted in a verdict and judgment in favor of the plaintiff for $300. From the order refusing a new trial, the defendant appeals.
At the trial, the plaintiff was the first witness called. He was asked the following questions on cross examination by the defendant's attorney. "Q. Mr. McJunkin, early in January, 1940, did you receive a letter from Miller Gessler, attorneys for Dr. Kiner, asking you to vacate the farm? A. Yes, that was after Mr. Gessler was out there. . . . Q. Do you have any idea of the date? . . . A. I have an idea it was about the middle of January, I wouldn't say for sure, because they were out there around the first of January. Q. When you say they were out there who do you mean? A. The first of January some time the Doctor and Gessler come out. Q. Why did they come out? A. They came out for a settlement, and they came there and offered me $250.00." The defendant immediately moved the court for the withdrawal of a juror and the continuance of the case, on the ground that the statement of the offer of settlement was not responsive to the question. The court refused the motion, but thoroughly and very explicitly instructed the jury to disregard the statement and to eradicate it from their minds. Appellant assigns as error the failure of the court to withdraw a juror and continue the case.
An offer to compromise or settle a pending controversy is not an admission of liability: Folk v. Schaeffer,
Appellant contends that appellee had no legal right to remain on the farm after January 1, 1940, and assigns as error the court's refusal to affirm appellee's point for charge to that effect. Whether or not the appellee had this right depended upon the terms of the oral contract. It was the contention of the appellee that there was to be a settlement and that he was to be paid for his interest before he left the farm. He testified that this was a condition precedent to his departure. The provision of the oral contract on this point was a question of fact; and as such it was properly submitted to the jury: McCormack v. Jermyn,
The judgment is affirmed.