69 Pa. 53 | Pa. | 1871
The opinion of the court was delivered, October 9th 1871, by
It is not within the province of a court to say whether a given offer would actually prove the fact it was offered to prove, provided its tendency be to prove the fact. If it, with other facts in the case, tend to establish a result matei’ial to be established by the party offering it, it should be admitted, and go to the jury. It is for them to pass on it under instructions from the court. Bespondeant facto jur atores.
In the case in hand the letters of the defendants transmitted by mail to their landlord, H. M. Richards, offering to surrender the room in the building he had leased from Cooley and to them, his silence, and non-claim for rent for seven years, was, with the testimony of Leavitt, important to go to the jury on the question of a surrender in fact by Richards, the plaintiffs’ landlord, and its acceptance by the paramount landlord, Cooley. There was proof that the plaintiffs had failed and surrendered to H. M. Richards, and that he surrendered to Cooley. Leavitt, whose testimony was rejected, says: “ Richards took me through the building and put me in possession.” “ The whole upper part of the building was put in my possession at the time mentioned (June or July 1861), according to the paper and personal surrender.” “Mr. Richards put me in possession of that building from 1st of May 1861 to 1st of May 1862.” “ From the time of the surrender mentioned, in June or July 1861 to May 1862, I acted as landlord of the premises.” “ The front room in the third story of that building (the room of Pratt, Reath & Co.) was vacant in the month of
Judgment reversed, and venire de novo is awarded.