Beard v. Heck , 1900 Pa. Super. LEXIS 166 ( 1900 )

Opinion by

Beaver, J.,

The defendant, the owner of a tract of timber land, sold the timber thereon to one Fenicle, who employed the plaintiff to haul the timber cut thereon to his mill. After carrying on the lumber operation upon the defendant’s land for a certain time, Fenicle failed, owing the plaintiff 1170.32. The defendant employed the plaintiff to continue hauling upon the lumber operation for him and admitted an indebtedness to the plaintiff therefor of 136.75. Plaintiff alleged that, as an inducement to his continuing at work, the defendant offered to pay him the amount due from Fenicle. This was denied by the defendant and the terms of the contract between them became the principal question at issue, which was submitted to the jury.

The question of the legality of the tender’made by the defendant to the plaintiff before the justice and subsequently, renewed at the trial in the court below, raised by the first and fifth specifications of error, is not a practical one, inasmuch as the verdict of the jury was for an amount greater than the tender ; and, as the judgment entered upon the verdict should, in our opinion, be sustained, may be eliminated from the consideration of the case.

The second and third assignments of error relate to testimony which the defendant asked to have stricken from the record. The court declined to comply with the request but proposed instead to say to the jury that the portion of the testimony outside of the immediate contract between the parties was immaterial. This was done in the charge, in which the court said, referring to the testimony as to which the motion to strike out was made: “ So that is a matter entirely outside of this case and irrelevant and you have nothing to do with it; you need not consider it.” This, of course, as effectually disposed of that part of the testimony, so far as the consideration of it by the jury was concerned, as if it had been entirely stricken from the record. The defendant suffered in no way by reason of the failure of the court to accede to his request. The case turned entirely upon the question as to whether or not there was sufficient evidence adduced on the part of the plaintiff to take the case out of the statute of frauds. If the agreement, for which the plaintiff contended, was that of the parties, the defendant thereby agreed to pay the debt of another. It was not in writing. Was there enough in the case to take it out of the operation of the Act of April 26, 1855, P. L. 308 ? If the testimony of the plaintiffs was to be believed, the defendant had distinctly agreed, in consideration of the plaintiff’s returning to work for him, that he would pay the debt due from Fenicle to the plaintiff. The testimony of the plaintiff and his son was distinct and positive as to this agreement. It was denied by the defendant. The question was for the jury. It was fairly submitted to them by the court below, in which the apparent folly of the agreement was fully pointed out to the jury. The defendant had no reason to complain of this part of the charge. Indeed he does not do so directly but assigns for error the answer of the court to the plaintiff’s second point, in which it is said: “ I say to you that the statute of frauds does not apply in this case, nor is this point applicable to the facts of this case.” The answer was a denial of the point as put by the plaintiff but the part of it to which the defendant evidently objects is that part which refers to the statute of frauds. If there had been nothing else upon this subject in the charge of the court, it might have been open to some, objection, but the whole question was fully stated by the court as turning upon the preponderance of testimony in regard to the agreement between the plaintiff and defendant by which the plaintiff resumed work upon the lumber operation for the defendant. Taking the charge as a whole, there is no substantial ground for complaint in regard to the instructions to the jury upon this subject. The well settled law relating thereto was clearly stated, the court saying: “ The whole question is simply what were the terms of the contract between these two parties ? Did the defendant agree to pay, as a part of his agreement, this debt of Fenicle, in order to induce the plaintiff to come back and resume the hauling ? If he did, then he is liable to and should pay the debt. There was a sufficient consideration for it. It was his own original agreement and undertaking. If he did not, then the plaintiff is not entitled to recover for that debt. This is in accord with, although not in the exact language of, the law, as laid down in Nugent v. Wolf, 111 Pa. 471, which has since been followed in Elkin v. Timlin, 151 Pa. 491, Bailey v. Marshall, 174 Pa. 602, Crawford v. Pyle et al., 190 Pa. 263, Kelly v. Baun, 6 Pa. Superior Ct. 327, and Weber v. Bishop, 12 Pa. Superior Ct. 51.”

The fourth specification assigns as error a portion of the paragraph of the charge of the court, in which the testimony therein set forth was entirely withdrawn from the consideration of the jury. It does not contain a complete proposition and, taken in its connections, was a practical compliance Avith appellant’s request. The case was fairly tried and clearly submitted to the jury for its finding and the only real question involved in it was the credibility of the witnesses on the one side and the other. With the finding of the jury in that behalf we have nothing to do. It was peculiarly and exclusively Avithin their province. Upon a consideration of the whole case, we find no reversible error.

Judgment affirmed.