McNeile v. Cridland , 1898 Pa. Super. LEXIS 174 ( 1898 )

Opinion by

Rice, P. J.,

The valid objection to the evidence referred to in the first and second assignments of error was, not that it would tend to contradict or vary the contract by parol, but that proof of representations, though false, made by the plaintiff’s agent after the contract was entered into, would not legitimately tend to establish the defense, which was deceit. This is obvious; for the defendant admitted that the contract was made on February 18th, and was in writing; the receipt which contained the essentials of a valid writing for the sale of real estate was delivered on that day; and the other witness, Aaron J. Cridland, testified, that, before the alleged conversation took place, he had been told by his sisters, the defendants, that they had purchased the house. Manifestly they did not purchase it on the faith of any representations made on February 25th, and the court committed no error in rejecting testimony which had no legitimate tendency to prove the defense, and could only tend to confuse and divert the minds of the jurors from the real issue. The first and second assignments are overruled.

An application for a new trial based on an allegation of aftei’discovered testimony is addressed to the sound discretion of the trial court, and only in clear cases of abuse of discretion, if ever, is the refusal of the application assignable for error: DeGrote v. DeGrote, 175 Pa. 50, The witness Kohn had testified on the trial, and had undertaken to describe the cracks in the building, but omitted to mention any cracks in the foundation walls. Very naturally the court might hesitate to grant a new trial for the purpose of permitting him to supplement his testimony. But we need not speculate as to the reasons which moved the action of the court. They are not on the record; and, even if the defendants had excepted to the refusal of the application, there is nothing in the case to take it out of the rule above stated. The third assignment is dismissed.

In commenting on the testimony of the witness Locker, the learned trial judge committed no error of which the defendants have any just reason to complain. The effect of'his comments, taken as a whole, was to lead the jury to the conclusion, not that the witness’s version of the conversation was the more probable, but that his version did not differ in legal effect upon the question at issue from that of the defendants. “ It seems to me,” said the judge, “ for the purposes of this case there is no real difference” (between “solid ground,” the terms used by the plaintiff, and “ solid foundation,” the terms used by the- defense) “ because the defendants, if they were told that the foundations were solid, were entitled to believe, not only .that those cellar walls were well built, but that they were well built and well placed upon a proper supporting foundation of earth, and if they were not so placed, if they were placed upon .a foundation that was not safe, that would not support the weight put upon it, then there was not a solid foundation.” There were other instructions to the same effect: and upon a careful perusal of the whole charge it will be seen that the case was sent to the jury upon the theory, so far, at least, as the judge expressed an opinion upon the question of fact, that the defendants’ version of the representations was not contradicted in essential particulars by the testimony of the witness. Further comment upon the fourth assignment of error is unnecessary ; it is overruled.

We find no error in the instructions complained of in the fifth assignment, even when disconnected from the rest of the charge. The theories of both parties and the main points in the evidence supporting them were adequately and impartially presented. Nor did the court, in summarizing the testimony of the witness McBride, misapprehend its effect, as will be seen from tire following extract therefrom: “ I mean to say it is impossible to talk about one house that is built tied in with other houses, to say that one house would show a crack when they have all gone down together; there is nothing to crack them, they cannot crack; they can fall apart, they can fall out in the street, but there is nothing there to hold them to make them crack. You cannot talk about one house that is built in with other houses. It is impossible for that house to show a crack, when they are all going down together. The house lias gone, all the walls, the side walls, and back walls, and front walls.”

It is not error for a trial judge to comment on the testimony of a witness and to call attention to its inherent probability or improbability, provided he does it fairly and leaves the question of his credibility to the jury. Where particular instructions are not asked for and the complaint is that the charge was inadequate or onesided, the court will be reviewed on the general effect of the charge, and not upon sentences or paragraphs disconnected from the context which qualifies and explains them ; if, as a whole, the charge was calculated to mislead, there is error in the record; if not, there is none: Irvin v. Kutruff, 152 Pa. 609 ; K. of P. v. Leadbeater, 2 Pa. Superior Ct. 461; Walton v. Caldwell, 5 Pa. Superior Ct. 143. This charge, whether viewed in respect of the instructions upon the law, or the review of the facts, was clear, adequate, and impartial.

The instruction complained of in the sixth assignment, taken in connection with what followed, was a full and clear statement of the controlling questions of fact in the case and was free from error. This seems too plain to permit discussion.

Judgment affirmed.