Minick v. Gring

1 Pa. Super. 484 | Pa. Super. Ct. | 1896

Opinion by

Reeder, J.,

W. H. Minick, the'plaintiff, had a note against Chas. E. Dick for $115 with a five per cent attorney’s commission for collection. Suit was brought and judgment obtained for the amount of the note with collection fee before George W. Lobaeh,.Esq., a justice of the peace. There was no attorney employed in the suit by the plaintiff. David Gring, the defendant, was indebted to Dick for hauling lumber. Upon the trial of the case in the court below the- plaintiff testified that he met Gring and the latter told him “he should put no more costs on the note,” that he (Gring) would pay it, and this promise was the basis of the suit against Gring. The defendant contended that he was authorized to pay the judgment with interest and costs, but that Dick,had forbidden him to pay the attorney’s fee; that he went to the justice’s office, made a tender of the amount less the commission, and that this was refused. Dick, when upon the stand as witness for the plaintiff, testified that he had sent word to Gring through his (Gring’s) father to pay this note. In support of this theory the defendant was asked to testify what direction was given him by Dick through his (Gring’s) father as to the payment of this judgment. This was manifestly intended to prove that he was instructed by Dick’s agent or messenger to pay the note but not the collection fee. It was excluded by the learned court below and forms the subject of the first assignment of error. This assignment of error must be sustained. The plaintiff had proven by Dick that he requested Gring to pay the note. The defendant proposed to prove just what the instructions were which were brought to him by Dick’s messenger, that they were to pay the note but not the collection fee. The former was admitted, the latter excluded. The vice of this ruling is shown by what the learned court says in his charge to the jury: “I will call your attention to the testimony of Mr. Dick who testifies he was in the employ of Mr. Gring, and testifies that he requested Mr. Gring to assume this judgment and pa† it. Now did Mr. Gring act in pursuance of that request or not ? ” When the defendant attempted to prove just what that request was and that he did act in compliance with it, this evidence was rejected by the court and is the subject of the first assignment of error.

The second assignment of error must also be sustained. When the defendant was on the stand it was proposed to prove by him that he offered to pay the justice of the peace, Lobach, the amount of the judgment with debt, interest and costs, but without the attorney’s commission, that Lobach went out and came back land said that Minick refused to take anything less than the debt, interest, costs and collection fee; that he then made a tender in gold and silver of the amount of the judgment- less the commission,- which was refused. Minick when upon the stand testified that he had accepted the proposition. The defendant was entitled to have this testimony of his go to the jury with that of Minick in order that they might consider it together in order to determine the exact contractual relation between Minick and Gring upon that day. To exclude the one and admit the other was error. The second assignment of error must therefore be sustained.

The third assignment of error cannot be sustained. It was immaterial how much was the amount of Gring’s indebtedness to Dick. The paramount inquiry for the jury was what was the proposition made to Minick by Gring. Was it as Minick testifies, that if he “ put no more costs upon the note that he (Gring) would pay it,” or was it as the defendant offered to prove, that he would pay and indeed -offered to pay it less the five per cent commission. Upon this question the testimony offered would shed no light nor was it properly admissible in evidence for any other purpose in the case. It was therefore properly rejected by the learned judge of the court below.

The fourth and fifth assignments of error must be sustained. These portions of the charge are not such a fair and impartial presentation of the facts to the jury as the defendant was entitled to. They emphasize the testimony of the plaintiff while they ignore the testimony of the defendant. The rule as laid down by the Supreme Court in Goerson v. Commonwealth, 99 Pa. 388, that where a judge prominently presents in his charge the theory and strong features of the prosecution and ignores the theory of the defense and the facts on which it is based, this constitutes cause for reversal on error, is applicable in this case. The fact that the last mentioned case was a criminal case and this a civil one makes no difference in the application of the rule. Not only was the jury’s attention called to the plaintiff’s testimony but to all the inferences and deductions that might be made from the plaintiff’s testimony, while the learned judge only referred to the defendant’s testimony and theory of defense with the simple declaration that he denies the evidence of the plaintiff.

Judgment is reversed and a venire facias de novo awarded.