Burns v. Pennsylvania Railroad

Opinion by

Mr. Justice Mestrezat,

We will not sustain the third assignment of error. While we think it apparent that Mr. Walter was acting for the defendant company at the time he made the offers, yet it was the duty of the defendant’s counsel to elicit that fact clearly from the witness so as to disclose his incompetency. Walter’s preliminary examination having left in doubt whether he was acting for the company, we cannot convict the court of error in admitting the testimony complained of in this assignment.

Mr. Stadtfeld’s testimony was admitted under different circumstances. When it was offered the defendant’s counsel objected on the ground that a bond having been filed and the matter being in litigation, the testimony was incompetent. Before the witness was permitted to answer, it appeared by his testimony that a bond had been filed, and the property in question had been appropriated by the defendant company. It was, therefore, manifest that if an offer had been made to Mr. Stadtfeld as the plaintiff’s counsel, it was in compromise of the litigation. The property was not at the time open for purchase by any one except the defendant. But Mr.' Stadtfeld’s subsequent testimony disclosed clearly the fact that Mr. Walter was at the time representing the defendant, that the witness so understood the fact, and that the offer “was in settlement of litigation,” and “to dispose of the entire transaction.” The testimony was therefore clearly incompetent and should have been excluded. At the close of Mr. Stadtfeld’s testimony, the defendant’s counsel asked the court to instruct the jury to disregard it. The refusal, of this motion constitutes the first assignment of error. The admissioh of the testimony against the defendant’s objection is the subject of the fourth assignment.

It appears from Mr. Stadtfeld’s testimony that the unsigned agreement was to be executed by Mr. Walter as the reprsentative of the defendant company, and was in settlement of the plaintiff’s claim for damages against the company for the land appropriated by it. It was admitted in evidence subject to objection, and is embraced in the fifth assignment of error. The reason which excludes Mr. Stadtfeld’s testimony as to the offer having been made, also excludes the admission of the agreement. The agreement was merely to consummate the settlement of the claim for damages against the company.

The plaintiff offered in evidence a deed from the Aspinwall Land Company to the defendant company conveying several lots of ground in the grantor’s plan of lots adjacent to the lots taken by the defendant, and also a strip of land on the south side of River avenue and along the Allegheny river, “for the purpose of showing the consideration, and what was conveyed.” This offer was, of course, for the purpose of showing the price of the lots conveyed as evidence of the value of the lots taken by the defendant company in its condemnation proceedings. The consideration named in the deed was a lump sum. The deed itself did not show the consideration for the lots or for the strip' of land. The defendant, therefore, should have been permitted to show how the consideration was made up, and what was paid for the river frontage and each of the lots. This was the offer of the defendant and it should have been admitted. It was not an attempt to correct or explain the deed, but simply to explain the consideration, and to inform the jury what was paid for each of the several lots embraced in the deed. This testimony was necessary if the price of the lots conveyed by the Aspinwall company was to be of service to the jury in ascertaining the value of the lots condemned by the defendant company.

The first, fourth, fifth and sixth assignments of error are sustained, the judgment is reversed, and a venire facias is awarded.