Hennershotz v. Gallagher , 124 Pa. 1 ( 1889 )

Opinion,

Me. Justice Mitchell :

The learned judge below was clearly right in holding the two agreements to be separate and distinct. They were made more than nine months apart in time; each is complete in itself and neither contains any reference to the other; even the lands which are the subjects of them are prima facie not the same, for, though in the same counties, they are described in the first as “ four farms containing seven hundred and sixty-three acres,” and in the second as “ the several premises containing in the aggregate seven hundred and forty-seven- and two thirds acres, more or less,” and finally they were valued in the first at $76,300, and in the second at $6,000. If it be conceded, as probably the fact was, that the lands referred to were the same in both, even then the learned judge might well say that it was “ incredible ” that the two agreements were intended to be but one and the same.

It being thus clear as a matter of law that the two agreements were separate and distinct, the evidence presented to show that they were in fact intended to be one, was entirely lacking in the essentials of clearness, precision, and convincing force, necessary to reform a written instrument. But this need not be discussed, as in the entire absence of any ground laid of fraud, accident or mistake, in the making of either agreement, parol evidence was not admissible at all to affect their legal construction.

The only question remaining is the measure of damages, and we have gone carefully through the bill of exceptions to see if there was any evidence upon which the jury should have been allowed to go beyond a nominal verdict. We do not find any.

Two items only could be pointed out by the counsel for plaintiff in his argument. First, the valuation put on the farms by the parties themselves in the first agreement. This agreement however was one for a trade. It dealt in very large nominal figures, of which only a trifling part was to be cash, the rest being a miscellaneous assortment of merchandise, and the Ohio farms, at a valuation of seventy-six thousand three hundred dollars. Yet, when in the second agreement the parties come to a cash valuation they reduce the figures to six thousand dollars. It is plain that the first agreement affords no competent evidence of the cash value of the Ohio farms.

Secondly, it is argued that the tax bills were evidence of value. We cannot so regard them. They had none of the essential elements of evidence. They were not under oath, were not shown to have been based on the actual cash value, or made by a person competent to make such valuation; nor, lastly, were they admissions against interest, which might dispense with the necessity of an oath. They were not offered as evidence of value, but to show certain expenditures to which defendant had been put and which plaintiff’s tender should have covered, and they were admitted against plaintiff’s objection, for that purpose alone. The resort to them as evidence of value is an afterthought which cannot be successful.

Juries cannot be allowed to guess at verdicts without legal evidence, and especially should the rule not be relaxed in a case where both parties were present on the witness stand, and were silent when tbey could bave given clear information if tbey bad cbosen to speak.

Tbe only competent evidence of value really before tbe jury was the price stipulated by tbe parties in the second agreement, six thousand dollars, and as tbe plaintiff admitted that this not having been paid was to be deducted by the jury in making up their verdict, there is nothing left on which the jury could give more than nominal damages.

The judgment is affirmed.