Hentzler v. Weniger

Pee Curiam,

All the defendant’s points for charge were withdrawn excepting the ninth, which was affirmed, the charge was not excepted to, the verdict was regular in form, there was no motion in arrest of judgment, or for judgment for the defendant non obstante veredicto, no exception was taken to the order overruling the motion for new trial, and the reasons assigned in support of that motion are not printed in the appellant’s paper-book. It is plain, therefore, that the plaintiff’s motion to quash or dismiss the third and fourth assignments of error is well founded. The case of Stephens v. Gunzenhauser, 27 Pa. Superior Ct. 417, cited by the appellant’s counsel in support of the third assignment, is not in point. The decision in that case was put upon the ground that the verdict was unintelligible in form, and was not amendable by this court.

In the first and second assignments, the defendant complains of the action of the court in sustaining the objection to his offer to testify to what the testatrix said to him at the time he drew her will, with reference to the bequest to the plaintiff, and with reference to the treatment which she received at the hands of the plaintiff and his wife. The offer, it is to be noticed, does not set forth the substance or purport of these declarations, so as to enable us to determine whether they were favorable or otherwise to the defendant. According to the ruling in Harris v. Tyson, 24 Pa. 347, this, of itself, would' be a valid reason for overruling the assignment. But apart from the objection that the record does not show that the rejection of the offer, even though technically erroneous, harmed the defendant, there is the further obvious objection that, prima facie, the unsworn declarations of the testatrix, in the absence of the plaintiff, at the time she made her will, were irrelevant to the questions at issue, namely, whether she made the alleged contract, or was justified in refusing to perform it. Nor was there anything in the other testimony to show their relevancy. If there were any facts which would make them admissible as part of the res gestae, as is now claimed, or for any other purpose, they ought to have been set forth in the offer. Upon the record as presented to us we are unable to say that any error was committed in the rejection of the offer of which the defendant has just reason to complain.

All the assignments are overruled, and the judgment is affirmed.