Bash v. Bash

• Decision Date: 10 November 1848
• Citation: 9 Pa. 260
• Parties: BASH <I>v.</I> BASH.
• Court: Pennsylvania Supreme Court

9 Pa. 260

BASH v. BASH.

Supreme Court of Pennsylvania.

November 10, 1848.

IN error from the Common Pleas of Westmoreland.

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Cowan and T. Williams, for plaintiff in error.

Foster, contrà.

Nov. 10. GIBSON, C. J.

A majority of us concur that there is error in the instruction on the defendant's second and seventh points. It is settled by the decisions quoted, that a contract for testamentary compensation of work done for a father by a son after his majority, can be proved only by direct and positive evidence of it; yet for "direct and positive," the judge substituted in his charge, "clear and satisfactory," and thus put such a contract, as to proof of it, on the footing of a contract between strangers unaffected by any personal relation. The course of this court has been to hold a tight rein over it by making the quality, if not the sum of the proof, a subject of inspection and governance by the court, and by holding juries strictly to the rule prescribed, instead of suffering them to be led away by considerations of hardship or paternal injustice. Every sane man must be allowed to make his own contract as well as his own will, and to prevent jurors from making it for him according to their peculiar notions of fitness and propriety, we have held that the evidence of a contract to compensate the services of a child, must be positive and direct. But evidence, clear and satisfactory in the estimation of a jury, may be neither. It may be no more than presumptive and inferential; and if that were sufficient, it would be easy to see how every case of the sort would go. To an unpractised eye, loose and inconsiderate expressions, such as make up the mass of the evidence in this case, and presumptions or probabilities resting on circumstances, may seem perfectly clear and satisfactory; but they constitute not the proofs by which such a contract is to be established in conformity to the judgments of this court. In the case before us, there was scarce a particle of any other evidence, and the relaxation of the rule by the judge, had an immediate tendency to give the conversations of the father with strangers a controlling influence. Bair, the only witness who spoke of any communication between the parties, face to face, or apart, testified that the father told Henry, who was complaining of the hardness of the work, not to be discouraged, but to stay with him, for he should be paid for all his hard work — that he would leave him the farm. No other witness spoke of having been present at the making of a contract between them; nor did any one else speak of a contract at all, except Auckerman, who testified that the father had said to him in the absence of the son, "I have made a contract with Henry, after my death he shall have all that I own, if Henry lives longer than I live." If the case stood on this declaration alone, it would scarce be held a legal foundation for a recovery; for what the father supposed to be a contract, may have been a naked promise without condition or terms, and without these, the evidence of a contract imposing a legal obligation, would be neither positive nor direct. The question of proof must therefore depend on the testimony of Bair, corroborated by this and other parts of the evidence; and it is proper to say that neither to my brother Rogers, nor to myself, does it appear sufficient to support the action, for though he spoke of terms and conditions, the promise seems to have been so commonplace, so like a transient and casual expression of present intention, and so unlike a deliberate and direct proposal to incur an...