104 Pa. 192 | Pa. | 1883
The opinion of the court was delivered November 5th 1883, by
This action -was founded upon a contract between Israel Painter and A. O. Tinstman. Painter having died, his administrators brought the suit. They alone were plaintiffs and Tinstman alone was deíendañt. By the terms of the contract Tinstman was to pay Painter thirteen thousand dollars in consideration of Painter’s transfer to Tinstman of all his interest in certain coal and land which had been acquired by Painter from W. B. Felgar, who had acquired the same by agreement of purchase from Daniel Felgar. A large part of the thirteen thousand dollars had been paid by Tinstman to Painter during his life and the plaintiffs, his administrators, after his death. The latter claiming that there was still due a sum of $2,150, brought this action to recover it. It appeared that by an agreement between Painter and W. B. Felgar the sum of thirteen thousand dollars to be paid by Tinstman was to be equally divided between them. When the administrators of
There is no merit in the second assignment. The witness, one of the plaintiffs, was called to prove matters occurring after the death of his intestate. It was then proposed to cross-examine him as to matters which occurred before Colonel Painter’s death. That this could not be done was expressly ruled in Bierly’s Est., 32 P. F. S. 419. The right to cross examine an adversary is conferred by the second section of the Act of 1869, and of course it can only be exercised in the cases which are allowed by that Act. But the Act does not apply in cases where executors or administrators are parties, and this exception applies to the whole Act, to all its sections. Moreover, no harm was done by the rejection of the offer,.as the witness was immediately called as an adversary under the Act of 1865, and testified to the very same matters which were offered to be proved on cross-examination.
A more difficult question is presented by the third assignment. Felgar was called as a witness for the plaintiffs, and was allowed to testify to facts which transpired between himself dnd C.olohel Painter, in the lifetime of the latter. Was he competent for that purpose ? lie was not a party to the record, and he had no interest in the suit. lie was not called to testify against the representatives of a deceased party, but was called by them to testify in their favoi\ The opposite party to the suit was alive, and it was not the case of a dead assignor of a thing or contract in action. The case does not come within
Judgment reversed and venire facias de novo awarded.