Cote v. Schoen , 1896 Pa. Super. LEXIS 199 ( 1896 )

Opinion by

Rice, P. J.,

The defense in this case was that the contract between Beighley, the builder, and the defendant, contained a stipulation that no liens should be filed against the building. There was no dispute as to its other provisions. The contract was lost. The defendant, an unlearned woman, testified that the contract contained astipulation, quoting her language, “that I was to pay the money as the work went on, and that no liens should go on my house.” Mr. Swogger, who dictated the paper, testified that its substance was, that “ the house was to be built for $2,200, and delivered free of incumbrances.” Mr. Beighley testified that he did not remember that anything was said concerning liens or incumbrances. Whatever may be said of the legal effect of such a stipulation as that of which Mr. Swogger gave the substance, the testimony of Mrs. Schoen, if believed, established the substance of a complete and valid agreement within the rule laid down in Nice v. Walker, 153 Pa. 123, and later cases. No nearer approach to literal exactness in giving the contents of the lost paper could be expected, or was required to cany the case to the jury. It would have been error to charge them that the agreement, as testified to, was insufficient to take away the plaintiff’s right to file a lien, or that the evidence was insufficient to establish the agreement. The learned judge told the jury in plain terms, that unless they found that the contract contained a stipulation that no liens were to be filed, as testified to by Mrs. Schoen, their verdict should be for the plaintiff. In the absence of a request for more specific instructions the plaintiff is not in a position to complain.

The portion of the charge complained of in the third assignment of error contains an accurate statement in plain language of the rule of law applicable to the case. The learned judge having stated the rule correctly, it was not error to instruct the jury, that if the contract contained the stipulation against liens testified to by Mrs. Scboen, the application of the rule of law would work no hardship against which the plaintiff could not have protected himself by proper diligence. This may not have been absolutely necessary, but it was not misleading. A careful judge will not always content himself with a dogmatic statement of the law applicable to the case, and even if he is not bound to go further, it is certainly not error to point out to the jury the just and reasonable principles upon which it is based.

We see no error in the charge and the assignments are all overruled.

Judgment affirmed.