Bogle's Executors v. Kreitzer et al.

• Decision Date: 15 February 1864
• Citation: 46 Pa. 465
• Parties: Bogle's Executors <I>versus</I> Kreitzer <I>et al.</I>
• Court: Pennsylvania Supreme Court

46 Pa. 465

Bogle's Executors versus Kreitzer et al.

Supreme Court of Pennsylvania.

February 15, 1864.

ERROR to the Common Pleas of Northumberland county.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Joshua W. Comly, for plaintiffs in error.

G. F. Miller, for defendants.

The opinion of the court was delivered, February 15th 1864, by THOMPSON, J.

It is impossible to sustain this judgment. The verdict was general, and so is the judgment, while of the three counts in the declaration two were against the executors on their personal promise, and one was upon the promise of the testator. These counts, as was said in Seip v. Drach, 2 Harris 352, of a very similar narr., are incongruous, requiring different judgments, the first two de bonis propriis, and the other de bonis testatoris. That case also shows that charging the executors upon their promise as executors, is no more nor less than charging them personally. That case covers the whole ground in this so far as the judgment is concerned, and demonstrates that such a judgment is not sustainable.

I have no doubt but that if there had been a special finding on the last count, or there had been no evidence on the two first, and the judgment had been specially entered on the last, it would have been good now, since the days of technical accuracy have measurably passed away, and given place to substance without much regard to form: 10 Barr 372; 2 Harris 352; 6 Casey 75. But this was not the manner in which the case was disposed of, and consequently there was error.

So, too, we think the court erred in what they said about the receipt of the 7th April 1858. It was a receipt in full by one of the partner plaintiffs for the very subject-matter in dispute, viz., Hubbs's beef bill assumed by the testator. Its effect was not impeached by any evidence whatever; but the learned judge, while he agreed it was a receipt in full, put an inquiry to the jury, whether it might not have been applicable to some other claim of the plaintiffs. This was inviting them to disregard it, if they could imagine it to belong to some other matter between the parties. This was directing them to a subject of inquiry of which there was no evidence, and this was undoubted error.

We also think there was error in the manner in which the order, and the proof in regard to it, was submitted to the jury. I am unable to discover, in such a state of testimony as existed about the order, how to justify the court in asking the jury...