Supplee v. Timothy

| Pa. | Feb 25, 1889

Opinion,

Me. Justice Mitchell:

The fourth assignment of error raises the only points of law in the case, viz.: whether an agreement to alloAV the tenant to remain another year was nudum pactum, and whether there was sufficient evidence of such agreement to go to the jury. The circumstances were briefly these: A tenant having received from the landlord’s agent the required three months’ notice to quit, went to the landlord himself, and was told in effect, “ If you want to stay you can stay.”

That such a conversation may amount to an agreement is not denied, and we do not see any difficulty about the consideration. It is argued that the tenant, having made no promise to stay, could not be held; and therefore the landlord should not be. But there was evidence on which a jury could have held the tenant. If A. asks B. to do a certain thing for him, and B. assents, it is not necessary for A. to make a promise to pay in express terms; his preceding request is sufficient evidence of consent to bind himself as well as the other. Moreover, the situation of the parties was this: A lease was in existence which bound both until notice Avas given to terminate it. Notice Avas given; the tenant in effect asked the landlord to withdraw it, and the landlord assented. The notice being withdrawn, both parties were remitted again to the lease Avhose mutual covenants were sufficient consideration.

But there was evidence of an express promise by the tenant as Avell as the landlord. Timothy testifies: “ I Avent to see Mr. Tobias, and told him all about it, and Tobias said, No, if you want to stay, John, you can stay on there.”. . . . “ A week or so afterwards I met Mr. Supple, .... I told him that I would stay on; I told him I had seen Mr. Tobias, and that he told me I could stay on there.” With this evidence the judge could not have refused to submit the case to the jury.

Was it error to say to the jury, as complained of in the second assignment, that “ the testimony is about equally balanced?” The balance of testimony depends on very many things. It cannot be measured by numerical count of Avitnesses. It is largely influenced by their manner, their readiness and confidence in testifying, their opportunities of knoAvledge, the accuracy of their memory, their apparent truthfulness and impartiality, etc. ' An important element, too, is the weight to be given to writings (as in this case the letter of Mr. Tobias), in connection with the circumstances under which they were written. All of these matters are before the trial judge, and it should require a very plain error on his part to justify this court in saying that his right of comment was exceeded. The learned judge in this case said to the jury in this connection, “It is therefore his (the tenant’s) duty to prove to your satisfaction that this agreement was made. . . . The proof of that agreement must be satisfactory to the jury. The testimony is about equally balanced. The defendant alleges that the landlord did agree that he should stay on at the same rent; the landlord most emphatically denies that any such agreement ever was made.” He then goes on to give the jury some very clear and correct suggestions as to the weighing of conflicting testimony, and calls their attention in accurate and positive language to the law that “ a mere conversation is not an agreement,” etc. The expression that “ the testimony is about equally balanced,” taken in its proper connection, in a charge that as a whole was decidedly favorable to the plaintiff, cannot be justly complained of by him now.

The first and third assignments relate to the evidence upon the damages. The jury were charged that “ in ascertaining the damages you must depend on the testimony, and not decide the case from mere supposition. The defendant could not .....sacrifice his goods and charge the plaintiff with the difference.....It was his duty to do the best he could with his property, and if he wanted to hold the plaintiff for the difference .....he should have given him notice.....If they were sold they should be sold at the very best price that could bo obtained, and he should so prove to you, and the difference between the real value and what they sold for would be the proper measure of damages. This does not appear to have been done. He called in a couple of friends and they put a valuation, not upon the property but upon the damages.....That mode of ascertaining the damages is very unsatisfactory and improper. You must have evidence of the loss he suffered from the deprivation of the use of his property, and you should find that from the evidence. You will have to assess them as best you can if you find there was an agreement.” Certainly the plaintiff in error cannot complain of this charge as a matter of law. Some expressions, taken apart from their connection, are loose enough to allow the jury to guess at a verdict, but the jury were twice expressly told they could not do that, but must find the damages proved by the evidence, and the charge, as a whole, gave them the correct rule by which damages were to be measured.

The only question, therefore, is whether there was any evidence on which the jury could apply the rule given them. The evidence was loose and unsatisfactory, as the court below said, but we cannot say there was none. Timothy himself stated his damages in round figures at $1,000, and gave the facts on which he based his estimate — the stock that he had, cows, horses, agricultural implements, etc., their cost and value, the stress he was put under to sell them, and the prices realized. Grogan, whose testimony is specially excepted to, had been called upon by defendant to make a valuation, and it appeared that he had valued the loss instead of the goods themselves. The jury however were instructed in the charge, that this was not the proper mode of ascertaining damages. Grogan also testified to the number of cows, etc., and in a general way to their value. This part of his testimony was certainly competent, and it was to this, and the similar evidence of Timothy, that the learned judge referred the jury, when, after giving them the rule of law, he said, “ you will have to assess them (the damages) as best you can.” Taken by itself this expression would be inadequate and misleading, but taken in its proper connection, it was meant, and must have been understood by the jury, to refer them to evidence which was clearly and properly in the case.

On the whole there was no error in submitting the case to the jury, or in the mode in which it was done. If the jury made a mistake either in their verdict, or its amount, it was for the court below, not for us, to correct it.

The judgment is affirmed.