Galbraith v. Zimmerman

• Decision Date: 29 May 1882
• Citation: 100 Pa. 374
• Parties: Galbraith <I>versus</I> Zimmerman.
• Court: Pennsylvania Supreme Court

100 Pa. 374

Galbraith versus Zimmerman.

Supreme Court of Pennsylvania.

April 18, 1882.

May 29, 1882.

April 18th 1882.

Before SHARSWOOD, C. J., GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. MERCUR, J., absent

ERROR to the Court of Common Pleas of Montgomery county: Of January Term 1882, No. 282.

George N. Corson, for the plaintiff in error.—The deposition of O'Connel, taken in the lifetime of the defendant was clearly admissible. No distinction can be drawn between the deposition of Galbraith, which was admitted, and that of O'Connel which was rejected: Hays's Appeal, 10 Norris 268; Pratt v. Patterson, 31 P. F. S. 114; Evans v. Reed, 28 P. F. S. 415; Same v. Same, 3 Norris 254.

George W. Rogers, for the defendant in error.

Mr. Justice GREEN delivered the opinion of the court, May 29th 1882.

We are very clear that there was error in the rejection of O'Connel's deposition. At the time it was taken he was a competent witness, notwithstanding his interest, and under the well settled rule in such cases, the testimony then taken could be given in evidence at the subsequent trial. The former controversy was practically between the same parties and in relation to the same subject matter. In that proceeding O'Connel's testimony was taken. The objection to his competency on account of his interest in the suit, could not have prevailed if it had been then made. At the time of the trial of the present action, Zimmerman being dead, and the witness interested against him, the objection on the ground of interest necessarily prevailed and he was properly excluded. But when his testimony, taken when he was competent, in a proceeding relative to the same subject matter, and practically between the same parties, was offered, there was no legitimate reason for its exclusion. The learned court below admitted the deposition of the adverse party, Galbraith, taken in the same proceeding, after having rejected him as a witness on the trial, but for some reason which is not clear to us, rejected the deposition of O'Connel, who was not a party, but merely an interested witness. The following cases establish very clearly the competency of the rejected deposition: Pratt v. Patterson, 31 P. F. S. 114; Evans v. Reed, 28 P. F. S. 415, and 3 Norr. 254; Hays's Appeal, 10 Norr. 265. The test of present admissibility is the competency of the testimony at the time it was given. Thus in Hays's Appeal, supra, we said on p. 268: "When the plaintiff testified he was undoubtedly a competent witness, and nothing that occurred thereafter would have justified the court or master in excluding his testimony." In 31 P. F. S. on p. 117. Mr. Justice MERCUR, speaking of Evans v. Reed, said: "There it was said, `if the deposition of a party be duly and regularly taken so as to be admissible in evidence in a pending case, it is very clear that it would be admissible in a subsequent suit, between the administrators of the parties, involving the same subject matter.' Here it is a subsequent suit, tried after the death of one of the parties, and involving the same subject matter. The very case assumed there, substantially exists here. In each case the testimony was not only admissible when taken, but had actually been given in evidence."

But, notwithstanding we are of opinion that the learned judge of the court below was in error in rejecting O'Connel's deposition, we do not think it proper to reverse the case. The reason is that in our view it was entirely immaterial. The deposition of O'Connel has been printed and is returned with the record. We have read the whole of it with the utmost care, and are constrained to say that if it had been admitted and gone to the jury the court would nevertheless have been bound to order a non-suit or direct a verdict for the defendant.

The action was ejectment for a tract of land owned by the defendant, Joshua Zimmerman, and alleged to have been conveyed by Zimmerman to Galbraith, the plaintiff. It was proved that there was a verbal agreement between the parties for the exchange of the tract in question for eight houses and lots of the plaintiff situate in Philadelphia.

It was further proved that the plaintiff had executed the deeds for the eight lots to be conveyed by him, and had placed them on record. The last of them was dated January 6th 1879, and the first August 29th 1878. The verbal agreement was partly made in the early part of August 1878. The testimony showed, however, that it was not then completed, as Zimmerman insisted upon seeing the eighth house before he would close the bargain. He did subsequently see it while it was in the course of construction, but it does not appear that at any time after that he was really willing to make the exchange. At an early stage of the negotiations a written agreement for the exchange had been prepared at the instance of Galbraith and an attempt was made to get Zimmerman to sign it, but it was unsuccessful. He never signed it. At the time the verbal agreement was made, it was proposed that a written agreement should be prepared, but both parties said their word was as good as their bond, and it was not done. At the same time O'Connel proposed to make out the papers for them but both declined, and each said he would have his own papers prepared. Afterwards Galbraith executed deeds for all of the eight houses, but the last one was not executed till January 6th 1879.

These deeds were placed on record by Galbraith and this of course constituted a good delivery on his part. A deed was...