195 Pa. 45 | Pa. | 1900
Opinion by
The judgment from which this appeal is taken embraces only the money applied by the defendant to the first two attachments.
The defense set up to the plaintiff’s claim is, that the defendant paid the money sued for in this action on two judgments
To establish the notice alleged to have been given by the counsel for the plaintiff to the trust officer of the defendant Henry T. Dechert, Esq., was called as a witness. He testified that in consequence of information received from his client, through its counsel at Dayton, Ohio, he called upon Mr. Henry Price, the trust officer of the defendant, and had an interview with him in which he notified him of the change in the form of the plaintiff’s business, that the plaintiff was a trustee of the money in its hands, and requested him to advise the witness of the progress in the attachment case so that proper notice could be given the Union Trust Company to'defend. He further testified that he relied upon the promise of Mr. Price to give him the desired information, but that no notice of filing the interrogatories in the attachment proceedings was given him, and that he had no knowledge of an answer being filed or that a judgment had been entered against the garnishee.
The court below gave binding instructions to the jury to find for the plaintiff for the money paid on the first two attachments. These instructions were based on Mr. Dechert’s testimony that the defendant had been notified of the plaintiff’s defense to the attachments, and had promised Mr. Dechert, its counsel, that interrogatories should be submitted to him so that proper answers thereto might be filed setting up the defense.
By reference to Mr. Decliert’s testimony it appears that the conversation between him and Mr. Price occurred at the defendant’s office when the witness had gone there to attend to another matter. The testimony elicited from the witness in his examination in chief seems to be positive yet general, in its character. Mr. Decliert says he gave Mr. Price notice of the true condition of the business, but says he cannot give the language used in the conversation, which of course could not be expected after the lapse of so many years. At their interview, he gave no exact data that would enable the defendant to determine what amounts, coming into its hands, should be applied to each of the throe funds respectively. He spoke generally of the change in the business. Mr. Dechert does not tell us what Mr. Price said on this occasion, nor what reply, if any, he made to Mr. Dechert’s statements. The only part of the testimony showing that Mr. Price said anything is the answer of Mr. Decliert to a question of defendant’s counsel, that “ I relied upon his promise that he would give me information when anything occurred, and 1 would give him that information at the proper time.” It may be inferred from this reply that Mr. Price promised to give the desired information, but it is only an inference. With this exception, the whole conversation seems to have been conducted by Mr. Dechert. The interview occurred in December, 1890. The attachment was issued November 7,1890, and by his letter of the following day, Mr. Price very promptly wrote the association that his company had been served, the effect of the service, and requested it to take such action as it might deem proper. It is possibly a month after this communication, that Mr. Dechert calls upon Mr. Price and talks with him about this and another matter. No action was
We think it was error for the court below to withdraw from, the jury the consideration of Mr. Dechert’s testimony and to determine the question of fact by directing a verdict for the plaintiff. It was exclusively the province of the jury to determine what conversation took place between Mr. Price and Mr. Dechert and the meaning of the language used by them at their interview in December, 1890. What Mr. Dechert said, and what Mr. Price understood him to say was a question solely for the jury. As we said in a similar case, the court below evidently assumed that as no witness contradicted Mr. Dechert there was nothing for the jury to pass upon. This necessarily led the court into the error of giving peremptory instructions as to the effect of Mr. Dechert’s testimony. The question of notice had to be established by oral testimony, and it was, therefore, the duty of the court to submit it to the jury. “ It is settled law that when a case depends upon oral testimony such testimony must be submitted to the jury: ” Grambs v. Lynch, 4 Penny. 248. In Maynes v. Atwater, 88 Pa. 496, speaking by Mr. Justice Trunkey, we said: “The sense of words in connection with what the parties intended to express by them is exclusively for the jury to determine. The judge may not put a legal interpretation on oral words, and make it a matter of positive direction. It is the province of the court to expound the meaning of an instrument but not of words uttered of which there can be no tenor. It is the province of the jury who hea?' and observe the witness to determine the meaning of what he says.”
The view we take of the case does not require us to consider seriatim the several assignments of error. The seventeenth assignment is sustained.
The judgment of the court below is reversed, and a venire facias de novo awarded.
Mitchell and Fell, JJ., dissent.