4 Sadler 52 | Pa. | 1886
The questions to be considered in this case will perhaps be better understood after a brief statement of the facts out of which they arise:
Henry Murphy and Thomas J. Hamilton, who were copartners under the name of Murphy & Hamilton, were indebted to A. Hays & Company in the sum of $1,650, and E. P. Jones, the plaintiff in this suit, became bound as bail for the payment of that debt. On April 23, 1878, Murphy & Hamilton, upon their own petition, were adjudged bankrupts and on the 9th of July, 1880, were, in due form, discharged from their debts. A judgment having been obtained by Hays & Company against Jones, upon his obligations as surety, the latter, on the 13th of December, 1878, paid the debt, and the judgment was afterwards satisfied.
In the affidavit of claim the plaintiff alleges that Murphy after his discharge in bankruptcy, by an absolute, unconditional, and unequivocal promise undertook to pay to Jones the amount which as a surety he had been obliged to pay to Hays & Company and this suit is in part brought upon the alleged promise. In the affidavit of defense, Murphy, admitting the indebtedness of Murphy & Hamilton to Hays & Company, and that Jones became surety for payment thereof, alleges that Jones at the maturity of that debt, in point of fact, had in his hands money of Murphy & Hamilton more than sufficient to pay it; that Jones promised to pay the debt out of these funds, but failed to do so until judgment was recovered against him, and that when he paid the judgment he paid it out of money which he had thus retained for the purpose. The defendant also set up his discharge in bankruptcy and denied that he had at any time since agreed or promised to pay the debt.
The fourth section of the eighth rule of the court of common pleas provides as follows: “No evidence shall be heard upon the trial of the cause as to any facts not substantially alleged or referred to as a ground of action or matter of defense in the statements then on file in the cause.” The pleas were non assumpsit, payment with leave, etc.
It was undoubtedly competent for the defendant under this construction of the pleadings to show that the money which Jones paid Hays & Company had been actually taken from the funds of Murphy & Hamilton, which Jones had retained' for
The refusal of the offers B, C, and I), as far as this case is concerned, certainly did the defendant no harm. The facts alleged and offered to be shown -were wholly consistent with the schedules filed in the bankruptcy proceedings. These schedules contained a general statement of the Hays & Company claims, but as J ones had not yet paid them they were of course not set down in his name. It was wholly unimportant that the papers were prepared under his direction, or that he admitted there was nothing due him except a claim for rent, and a claim for professional services, as this Hays & Company’s claim was not in point of fact owing to him at that time, and the schedules showed that the debt remained unsatisfied.
The offers set forth in the seventh assignment are too general in form, as the original indebtedness is admitted; an offer to show payment should set forth the facts specifically as to the mode or manner in which the payment was made or under what particular state of facts the defendant is not indebted.
The judgment of Hays & Company was eleaidy admissible in evidence; it exhibited the record of the recovery by Hays & Company against J ones on his contract of suretyship; it fixed the amount for which he was held as surety and the amount which he was obliged to pay; it fixed, therefore, the amount of his claim against Murphy & Hamilton.
The form of the charge in general practice is certainly not to be commended. To say that the case depends upon the truth or falsity of the evidence of a single witness, although he may have possessed extraordinary opportunities to know of the matter concerning which he testifies, is generally to give too much prominence to a part of the case only. Shaver v. McCarthy, 16 Pittsb. L. J. 497.
The evidence should be submitted to the jury as a connected
But in this particular instance the charge of the court did the defendant no harm; the cause did in point of fact turn upon the testimony of E. P. Jones. He testified circumstantially and in detail as to the facts attending the alleged promise of Murphy to pay the debt after his discharge in bankruptcy; in this he was corroborated to some extent by his son and his office clerk. The testimony of Murphy, however, was an absolute denial, that and no more. In such a case we cannot see how the court could do any harm by saying what was literally true, that the whole case turned upon their believing or disbelieving the testimony of E. P. Jones. We find no error in this record, and, therefore, the—
Judgment is affirmed.
