Pessano v. Eyre

13 Pa. Super. 157 | Pa. Super. Ct. | 1900

Opinion by

Orlady, J.,

The plaintiff brought his action in assumpsit to recover an amount alleged to be due to him by reason of his alleged employment by the defendant to act as an expert witness in certain land damage proceedings before road reviewers and in the court of common pleas. The defendant was the attorney for the landowners, but the plaintiff claimed that at the time of his employment the defendant agreed to be personally responsible for and liable to him for the usual and customary charges for such services as he rendered. The appellant earnestly urges that the alleged promise to pay does not amount to any more than a guaranty, and there being no evidence that legal means had been exhausted against the principal, whose liability was guaranteed, there could not be any recovery. The plaintiff contended that the promise was personal and independent of tbe land owners, by reason of the case being what was called a speculative or contingent one.

Where the alleged contract consists of spoken words, and the parties differ as to the meaning of the words used, it is for the jury and not the court to determine the sense of the words used, and what the parties meant to express by them. It is the province of the court to expound the meaning of an instrument, but not the words uttered, of which there can be no tenor. It is the province of the jury to hear and to observe the witness and to determine the meaning of what he says: McFarland v. Newman, 9 Watts, 55; Brubaker v. Okeson, 86 Pa. 519; Boston v. Farr, 148 Pa. 220; Speers v. Knarr, 4 Pa. Superior Ct. 84; Loeb v. Mellinger, 12 Pa. Superior Ct. 592. The court below complied with the decisions in submitting the case to the jury, viz: “You are to determine the meaning of the language used by the witness — what is meant in the connection and in the manner in which it was uttered. If you are of the opinion that there was no express direct undertaking on the part of the defendant to pay what was due to the plaintiff that is the end of the matter, and your verdict should be in favor of the defendant. If you think that there was a promise on his part, a direct substantial promise, to pay for the plaintiff’s services, then another question would arise, and that would be, how much is the plaintiff entitled to receive ? ”

There was sufficient evidence in the case to require its submission to the jury An attorney at law may make himself liable by a special promise for the compensation of an expert witness called to testify for the client, especially if there be evidence in the case to warrant the jury in believing that the attorney had a personal financial interest in the result of the trial.

The assignments of error are overruled and the judgment is affirmed.