23 Pa. Super. 535 | Pa. Super. Ct. | 1903
Opinion by
The defendant appealed from the judgment of the lower court and filed seven assignments of error. The first five of these assignments are so flagrantly in violation of the rules of this court that they will not be considered. Rule XVI. An assignment of error to a ruling admitting evidence is defective which fails to set forth the evidence admitted: Haines v. Young, 13 Pa. Superior Ct. 303 ; Claflin Co. v. Querns, 15 Pa. Superior Ct. 464 ; Swope v. Donnelly, 190 Pa. 417; Raymond v. Schoonover, 181 Pa. 352.
It is not enough that the text of the assignment be supplemented by reference to the evidence set out in extenso in the appendix: London Assurance Corporation v. Russell, 1 Pa. Superior Ct. 320.
An assignment is defective which does not show the testimony adduced or proposed to be adduced under the offer admitted or rejected, but merely discloses a question propounded
These authorities and many others that might be cited dispose of the first three and fifth assignments. The fourth assignment is to the refusal of the court to strike out all of the testimony of Hugh Lynch. But the testimony is not printed with this assignment, and no exception was taken to the refusal of the court, if there was a refusal, and the ruling of the court is not given. This is so bad that no authority need be cited. This record is so badly made up that it is probable the appeal would have been quashed on motion of the opposite counsel, but no such motion was made and we will consider the sixth and seventh assignments on their merits.
On the question of quashing the appeal, see Curtis v. Winston & Co., 186 Pa. 492.
The sixth assignment is : “ The court below erred in refusing to charge the jury as requested by defendant in his first point for charge as follows: The promise, if made by Nardello, to pay the debt of Ruhland, contractor, to Frank and Pizzi is without consideration, is void under the statute, not being in writing, and plaintiff cannot recover from Nardello for work done by Frank and Pizzi.”
The seventh assignment is: “ The court below erred in refusing to charge the jury as requested by defendant in his second point for charge as follows: Under all the evidence in this case the verdict should be for the defendant.”
The court did not read these points to the jury, and the only attempt to answer them is in the general charge in these words : “ The points except as I have answered them are declined.” Then at the close of the charge we find: “ Exception to defendant to declination of defendant’s points.”
Our single question then is this: Was the promise of Nardello, which the jury found against him, to pay the claim of Pizzi against Ruhland, within the statute of frauds and perjuries and void because it was not in writing ? It maybe conceded that under some of the early cases this question would be answered in the affirmative. But on the facts as found by the jury and the modern cases we are of the opinion that the undertaking of Nardello was not void under the statute.
The jury having found the facts above stated in favor of Pizzi, we do not think the promise of Nardello to pay the money that was already due Pizzi for stone laying is void under the statute of frauds and perjuries. This for two reasons : 1. Nardello was interested as surety in having the contract performed. 2. He stipulated for all of the profits of the contract to go to himself and Frank, and although Pizzi did not sign this agreement he acquiesced in it and claimed nothing but his price per perch. Hence we think Nardello in making the promise was subserving a purpose of his own and he really made the debt his own.
Upon the facts as found by the jury, on as favorable a charge
The assignments of error are all dismissed and the judgment is affirmed.