Dosch v. Diem

Opinion by

Mr. Justice Dean,

Deim, defendant, leased to Adam Dosch, father of plaintiff, by written agreement dated November 13, 1891, his farm in Leacock township, Lancaster county, known as the Groff farm, for the term of one year from April 1, 1892, at a cash rent for grass of $40.00, and one half of all crops. At the date of this writing Adam Dosch lived on the Berton farm, and his son Samuel who had just been married lived with him. At the trial in the court below, the plaintiff, the son, alleged and adduced much testimony tending to show that tiffs written lease was canceled by the consent of the parties to it, and that then Deim entered into a verbal contract with him to rent the farm to him on substantially the same terms as those in the written lease to the father. Further, that in the performance of this verbal contract he purchased farm stock and implements, and moved on the Groff farm on April 3,1892, the father’s family going along and taking up their abode in the house with him, the son. Samuel proceeded to plant spring crops and do the work of a tenant on the farm; also, as he alleged, paid to Diem one quarter of the cash payment when it fell due, about the 1st of July following his occupancy. The cancellation of the written agreement with the father, the oral contract with the son and the payment of rent by the son as tenant ivere all flatly denied by Diem, and he adduced much testimony tending to sustain tiffs denial; lie alleged the father alone was his tenant, and that relation was created by the written contract.

On the 27th of July, 1892, Diem, the landlord, averring rent in arrears under the written agreement, made complaint thereof before a justice of the peace against the father, and in this proceeding judgment was entered in his favor for $299, rent in arrears, and that Adam Dosch, the father, deliver up possession of the premises to his landlord. After notice of this judgment to the father, the justice placed a warrant in the hands of the constable directed against Adam Doscb commanding him to execute the judgment by redelivery of the possession to Diem of the premises and collection of the costs. After two ineffectual efforts, on the third attempt, in September, the officer put Diem in possession.

In dispossessing the two Dosches, father and son, much damage resulted to the stock and goods. The evidence showed Diem present directing the movements of the officer and his posse in removing the families and goods. Samuel Dosch, the son, then brought this action against Diem for damages. The question on which the right of plaintiff to recover at all turned was whether at the time he was ejected he was the tenant of Diem; if not a tenant under the oral contract he had no right of action for damages. Nearly one hundred witnesses were called, many of them to testify to facts tending to prove or disprove the cancellation of the written contract with the father and the existence of the oral contract with the son. The learned judge of the court below submitted the evidence bearing on this question as well as that on the amount of damage to the jury, who under the instructions given found for defendant. We have now this appeal by plaintiff with fifteen assignments of error, eight to rulings on offers of evidence and seven to charge of the court.

As to the first three assignments of error, the plaintiff offered evidence tending to show that he had acquired the ownership of certain personal property which he alleged formed part of that thrown out of the farmhouse and levied on for costs. When this offer was made, the cross-examination of plaintiff when on the stand had disclosed an intention by defendant to deny plaintiff’s ownership or title to nearly all the property on the farm. He had a right to prove his title to personal chattels by evidence of possession at the date of the alleged trespass ; but he was not restricted to this; he might go further and show how he acquired it. The objection that the record offered was of a feigned issue between him and other parties than Diem is not well taken. True, judgments are conclusive only as between parties and their privies; but this was not offered as an adjudication conclusive of plaintiff’s title, but as evidence of the channel through which the property came to him, just as if he had offered a receipted, bill of sale of the property, and had proved its genuineness. Such evidence is not conclusive; it may be attacked and discredited; still it is evidence. Besides, the plaintiff went further and proposed to show that although the other nominal party of record to the feigned issue was not Diem yet that he was the real antagonist, and the suit was in fact carried on by him. The court rejected this offer; we think in this there was error.

The fourth assignment is to allowing defendant’s counsel to ask Adam Dosch on cross-examination if after possession of the Diem property had been taken he had not taken out insurance on it in his own name. We think in view of the witness’ testimony in chief as to the contract with his son made in his presence, this was allowable for purpose of laying foundation for attacldng his credibility.

The fifth assignment is to the admission of evidence tending to contradict the witness as to the insurance. There was no error in this, and therefore the fourth and fifth assignments are overruled.

The sixth, seventh and eighth assignments are really to the order in which the court admitted testimony. This is so much in the discretion of the court below that a very gross abuse of that discretion would have to be manifest to induce a reversal. While there was some irregularity here, it is not of that character which could have seriously injured the appellant; therefore these assignments are not sustained.

The ninth, tenth, eleventh and twelfth assignments are to those parts of the charge referring to the conduct and declarations of the father indicating that he was the lessee of the farm, and not his son. We think the complaint as to each of these assignments is well founded. The court seems to have fallen into the error of treating the father and son as conspirators in collusion to defraud Diem, the landlord, and on this theory to have treated the acts and declarations of the father in the absence of the son as evidence against the son’s title. The father could not by his independent acts and declarations affect the son’s title to the property and his rights as a tenant. To affect the son, he must be proved to have participated in these acts; to have assented to the truth of the declarations of the father. To show that the son at times heard of these declarations of his father made to third parties did not impose upon Mm the duty of denying them and accusing his father of falsehood; and certainly they could not have the effect of destroying his title if it was otherwise good; the father could not talk away his son’s property, and we think the jury should have been plainly so instructed. In giving undue weight to the conduct and conversations of the father, and in failing to caution the jury as to the proper effect to be given them, we thmk that the learned judge of the court below erred; therefore, these four assignments are sustained.

There is nothing of merit in the thirteenth, fourteenth and fifteenth assignments of error, and they are overruled, but for those sustained, the judgment must be reversed. It is reversed accordingly, and v. f. d. n. awarded.