71 Pa. 130 | Pa. | 1872
The opinion of the court was delivered, by
The testimony offered by defendants below— the rejection of which is complained of in the 1st assignment of errors, was clearly incompetent. The witness was asked what were his rights under a lease which was in writing and in evidence. It is very manifest, that any answer could only have been the opinion of the witness, and inadmissible.
•The second assignment complains of the exclusion of an offer by the defendants below, to prove the terms agreed upon by Peter A. Browne and A. V. Cooke, as to the occupancy by Cooke of the twenty-two feet passage-way on the east side of the mill rented by Cooke from the plaintiff. The lease by the plaintiff to A. D. Cooke, was in writing and in evidence, and it was not proved, or offered to be proved that Peter A. Browne had any authority to agree upon any other or different terms. The learned judge was, therefore, clearly right in overruling this offer.
The third assignment is the exclusion of the testimony of Edwin L. Morgan, one of the defendants. When this witness was pro
The fourth assignment of error is to the admission of a lease made by the defendants, offered by the plaintiff in rebuttal. It is contended that there was nothing in evidence which it was relevant to rebut. But this is a mistake. The deposition of Albert D. Cooke was in evidence on the part of the defendant, and the lease in question tended directly to show, that before the lease by the plaintiff to Cooke, and before the time when the plaintiff, as alleged by the defendants, was bound to remove the small building occupied by Thomas Schofield, in order to make a clear passage-way of twenty-two feet, the defendants by the lease to Langenbach, Preusch & Hauck, had debarred themselves from the use of the passage-way, and had sustained, therefore, no damage by the non-removal of the small building by the plaintiff.
The letter of defendants of November 16th 1869, to the plaintiff, the admission of which is complained of in the fifth specification of error, was also clearly admissible. It showed that the defendants then set up as a reason for non-payment of rent, not the breach of covenant as now alleged, but entirely different matters.
Judgment affirmed.