Crossgrove v. Himmelrich

• Decision Date: 25 February 1867
• Citation: 54 Pa. 203
• Parties: Crossgrove <I>versus</I> Himmelrich.
• Court: Pennsylvania Supreme Court

Page 203

54 Pa. 203

Crossgrove versus Himmelrich.

Supreme Court of Pennsylvania.

January 30, 1867.

February 25, 1867.

January 30th 1867.

Before WOODWARD, C. J., THOMPSON, READ and AGNEW, JJ. STRONG, J., at Nisi Prius

Error to the Court of Common Pleas of Union county.

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G. F. Miller, for plaintiffs in error, cited Vincent v. Huff, 4 S. & R. 301; Cassell v. Cook, 8 Id. 287; Chitty on Contracts 276; Moorhead v. Fry, 12 Harris 37; Stichter v. Guldin, 6 Casey 114; Winthrop v. Un. Ins. Co., 2 W. C. C. R. 7; Miller v. Dowdle, 1 Yeates 404; Wolle v. Brown, 4 Wh. 365 W. Van Gezer and A. H. Dill, for defendants in error, cited Tams v. Bullitt, 11 Casey 308; Peters v. Horbach, 4 Barr 134; Welsh v. Speakman, 8 W. & S. 257; Wolle v. Brown, 4 Wh. 367; Allen et al. v. Rostain, 11 S. & R. 372; Wood v. Connell, 2 Wh. 553-561; Anderson v. Levan, 1 W. & S. 338; Summers v. McKim, 12 S. & R. 405; Fleming v. Ins. Co., 2 Jones 391; Elliott v. Boyles, 7 Casey 67; Hogan v. Bear, 5 Watts 111; Clark v. Watson, 14 Wright 319; 1 Stark. on Ev. 134-5; Edgar v. Shields, 1 Grant 363; Smethhurst v. Woolston, 5 W. & S. 106; Moorhead v. Fry, 12 Harris 37; Wilkinson v. Ferree, Id. 190; Waterhause v. Skinner, 2 Bos. & Pul. 447; Rawson v. Johnson, 1 East 203; Bronson v. Wyman, 4 Seld. 182; Robinson v. Tyson, 10 Wright 292; Williams v. Bently, 3 Casey 301-2; 1 Chit. Pl. 315, 318; 2 Id. 99; Douglass 684; Saunders 347, n. 3.

The opinion of the court was delivered, February 25th 1867, by THOMPSON, J.

1. The receipts objected to, the reception in evidence of which constitutes the 1st bill of exception, were properly received. They not only showed the contract between the parties who it was alleged made it, but, what was indispensable to the plaintiffs in their effort to recover back the money paid on the contract, they showed the payment of a large proportion of it by the plaintiffs to the defendants. The objection really was that the defendants were not partners in the transaction and the receipts not evidence. But when the receipts were offered it was proposed to follow them with proof that the contract was made with and for the benefit of all the defendants. This made them evidence, and if the offer failed, as it did not, the whole offer would go for nothing. It is thus manifest that this error should not be sustained.

2. The 2d alleged error is to the admission of Brobst's declarations that he was a partner in the transaction. He was sued as a partner, and of course his declarations were evidence against himself: what effect they might have on the others was another thing; but that was not regarded, for no instructions were asked as to that, for the reason, I presume, that the acts and declarations of the others abundantly showed he was a partner. This error is not sustained.

3. The 3d error needs but little notice. The defendants being called on to deliver the hay contracted to be delivered to the plaintiffs, presented the latter with an order on G. & D. Wilcox, of Bradford county, for 200 tons. It was presented, refused and returned. Of course it was evidence, to be followed by what occurred at its presentation. It could not have been spoken of without this, unless lost or destroyed.

4. This error arises on the admission of the deposition of D. Wilcox, a witness offered by plaintiff to prove the presentation and refusal of the order above mentioned. The first objection to it was that the testimony of the witnesses was not taken down in the handwriting of the magistrate. This was no valid objection, unless it had also appeared that it had been written by the party, his agent or attorney, which was not pretended: Summers v. McKim, 12 S. & R. 405. The magistrate's hand or arm was paralyzed, and hence he employed a clerk, as it was proper for him to do.

Another objection was that the witness refused to answer a question asked him by the defendants' counsel on cross-examination. The question had no bearing on the issue trying whatever, or the objection might have been good. It related solely to matters between the witness and the defendants, and whatever the answer might have been, it could neither have been contradicted or disputed by the party asking for it. The refusal did the defendants not the slightest injury. This clearly appears from the question itself. It ought not to have been asked, and it would be contrary to all reason to hold that the refusal of a witness to answer a question, which a court would not have required him to answer because of irrelevancy, should have the effect to destroy the answers to what was properly asked. "Evidence," says Blackstone, vol. 3, p. 367, "is that which demonstrates, makes clear or ascertains the truth of the very fact or point in issue." Had the cross-examination been with any view to this rule, the question never would have been asked, and we should not have been troubled with it. To allow the plaintiffs in error to make anything out of the objection, would be to countervail a well-known principle, which says that a party shall not take advantage of his own wrong. There is nothing in this assignment of error.

5. The 5th bill of exception is to the admission of the written statement of the demand on Wilcox for the hay on the defendants' order, his refusal, and notice of the election...