Wright v. Cumpsty

41 Pa. 102 | Pa. | 1861

The opinion of the court was delivered,

by Thompson, J.

We are clearly of opinion that the Court of Common Pleas erred in admitting in evidence the record of the Quarter Sessions of Armstrong county, to show the finding of two several bills of indictment for misdemeanors against the witness Stein. He had not denied that such bills had been found, for he was not asked the question. How, then, did the existence of the bills contradict him ? If he had denied the fact of their existence after being asked, then if that fact was relevant to the issue, they might have been given in evidence to contradict him. The nature of the evidence to contradict being two solitary facts, not necessarily in the mind of the witness when testifying, or of the essence of his testimony, he surely should have been asked about them before his answer could be contradicted by proof of their existence. This is undoubtedly the general rule: 2 Greenl. §§ 462, 467; McAteer v. Mullen, 2 Barr 32. The witness was asked his reasons for leaving Armstrong county, and he replied that he had left to engage in his business as a confectioner on the Mississippi river. Now, the bills of indictment were offered to show that he gave a false reason. They were improperly received, for two reasons. First, the question was about irrelevant matter, and could not be contradicted. Courts will not indulge parties in trying collateral issues that have nothing to do with the case, and hence an irrelevant answer, as it is presumed to have and ought to have no effect on the case trying, must be taken as true, and therefore no contradiction is allowed. Secondly, the evidence did not contradict the witness. The existence of the indictments found did not prove anything outside of themselves; much less did they contradict the reason given for leaving the county, or even raise a presumption that it was not true.

But after all, we think the error was innoxious in so far as this case is concerned. Stein proved no partnership between the plaintiff and defendants, and this was the object in taking his testimony. He proved but little, and that little went to establish a joint ownership to the extent of one-third in the boat; but it made out no partnership in the legal acceptation of the term, nor nothing like it. As therefore he proved nothing beneficial to the defendant, or which could have benefited his defence, he cannot complain that he was injured.

The next assignment of error is to the reception of what Dr. Burleigh had sworn on a former trial between these same parties, about the matter of the contract about this boat, he being out of the state at the trial. We think the identity of the subject-matters in dispute was the same in both actions, and so were the parties, excepting that, owing to the nature of the action, being replevin, a stranger to the contract which was involved in that controversy was included, but the parties here were parties plaintiff and defendant there, and we think the identity is sufficient, and brings the admission of the evidence within the ruling in the Insurance Company v. Johnston, 11 Harris 72, and Haupt v. Henninger, 1 Wright 138, and the rule as stated in 1 Greenl. 163, 164. This assignment of error therefore fails.

3. The third error is to the charge of the court. The declaration was for a quantum meruit, and unless this was met by showing a special contract, it was not within the rule of actions on entire contracts, where entire performance or its equivalent must be alleged, and be followed by proof showing complete performance or dispensation therewith by the party entitled to performance. Preston v. Finney, 2 W. & S. 55, and Miller v. Phillips, 7 Casey 218, were of this class. But no such special contract was declared on or shown in this ease, and hence, for defective workmanship a compensation might be allowed by a deduction from the amount claimed; or if the work was worth nothing, a jury might so find by their verdict. The judge committed no error in this part of his charge.

4. But a further error is assigned to the charge, in which the court seems to expound the law so as to allow the jury to settle.’ the indebtedness of the parties even if a partnership should be found to exist. I doubt whether there was a technical partnership proved in the case, but if there was, it does not follow that there Ayas error in allowing the jury, in the equitable action of assumpsit, to settle the rights of the parties, as there Avas no pretence that there Avere any debts due by or in favour of the firm. If it was a partnership, it was in the ownership of the boat. It was alleged that one Avas to contribute the hull and the other the engine, the former to bo tAvo-thirds owner and the latter one-third. It was a question whether Wright had not got the hull, and it was a fact that Cumpsty had got the engine; but the court said, “If, however, the engine as got by Cumpsty was worth less than one-third of the entire proceeds, then plaintiff would be entitled to recover what would make him equal.” It would be difficult to see what might be coming to plaintiff if the possession of the engine which he had got by his action of replevin Avere equal to one-third: but the question of partnership was pressed on the other side, and the general question, irrespective of this assignment, was contended for by the plaintiff in error. Even if this Avere so, the transaction being a single one, the plaintiff might recover what Avould make him equal with his copartner, and to this effect clearly are the cases of Brubaker v. Robinson, 3 P. R. 295, Gillis v. McKinney, 6 W. & S. 79, Galbraith v. Moore, 2 Watts 86, Borrell v. Borrell, 9 Casey 492. The old doctrine of the books, Avhich requires a balance to be struck, and an express promise to pay it, or to pay any balance to be ascertained in cases like the present, does not now exist to the extent formerly held. This is abundantly shown in Van Amringe v. Ellmaker, 4 Barr 281; in Gillis v. McKinney, and in Borrell v. Borrell, supra. In these cases the doctrine of a recovery on an implied promise is clearly held. It is certain there are authorities to the contrary, but the cases cited are among the latest on the subject. They show a disposition of the courts to remove, whenever it can be done, the necessity for a resort to the cumbrous remedy by account render. While the action still remains a remedy, appropriate in cases of trading and dealing as partners, the disposition is to limit rather than enlarge the necessity for it as a remedy; and in the later cases cited, it is superseded as between partners in a single transaction or adventure, only. The objection here at most only raises a question of remedy and not of right, as was said in Van Amringe v. Ellmaker, and every purpose of justice may be as well attained in an equitable action of assumpsit as in account render. We see no error'calling for a reversal of the judgment in this case. And the

Judgment is affirmed.