Hershey v. Love

• Decision Date: 23 June 1923
• Docket Number: 83
• Citation: 122 A. 225,278 Pa. 161
• Parties: Hershey v. Love, Appellant
• Court: Pennsylvania Supreme Court

122 A. 225

278 Pa. 161

Hershey v. Love, Appellant

No. 83

Supreme Court of Pennsylvania

June 23, 1923

Argued May 15, 1923

Appeal, No. 83, Oct. T., 1923, by defendant, from judgment of C.P. Cambria Co., Sept. T., 1915, No. 459, on verdict for plaintiff, in case of John S. Hershey v. Joseph K. Love. Affirmed.

Assumpsit for breach of contract. Before EVANS, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $25,000. Defendant appealed.

Errors assigned, inter alia, were rulings on evidence referred to in opinion of Supreme Court, and refusal of judgment for defendant n.o.v., quoting record.

The judgment is affirmed.

Philip N. Shettig, with him Forest & Percy Aklen Rose, for appellant, cited, as to the letters: McKee v. Jones, 6 Pa. 425; Clever v. Hilberry, 116 Pa. 431; Crossgrove v. Himmelrich, 54 Pa. 203; Glatfelter v. Mendels, 46 Pa.Super. 562; Oterie v. Vitale, 55 Pa.Super. 492.

Thomas F. Gain, with him George E. Wolfe and Brown & Williams, for appellee.

Before WALLING, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SADLER:

Hershey orally agreed with Love to aid in the financing and construction of a hotel in the City of Johnstown, in consideration of a promise to pay for his service by transferring preferred stock of the company to be formed with a bonus of common. This arrangement was made in 1914, but disputes arose between the parties, and the contract was repudiated by defendant in the following year. About March 1, 1915, plaintiff demanded the delivery of the 250 shares which he claimed the right to, and a refusal followed, it being insisted a new contract, for a weekly salary and commission on sales of securities made, had been substituted for the original agreement. Suit was brought to recover $25,000, admittedly the value of the stock involved, with interest, and a trial resulted in a verdict for this amount. A motion for judgment non obstante veredicto was overruled, and a new trial refused.

The errors assigned on this appeal are principally directed to the refusal to admit in evidence certain documents offered. Exhibit D was a letter from counsel for defendant, dated July 13, 1915, in which all liability was denied. Plaintiff had testified that, in the beginning of the previous March, he had demanded satisfaction of his claim, and was refused because of the noncompletion of the building. The letter of the attorney, written some months later, refusing recognition of any legal claim, clearly did not tend to show the statement of Hershey to be untrue, and was therefore properly rejected, as was practically conceded by counsel for appellant on the oral argument.

Admission of three other communications, dated March 16th, 22d, and April 7th, was likewise refused. They were apparently sent in answer to letters of plaintiff making demand for payment, and set forth the defense of a substituted contract. The notes, to which these were replies, were not produced, nor was the purpose of the offers given. An examination of their contents fails to disclose in them contradiction of the testimony of the plaintiff, except as to the reason for nonpayment which is averred. Clearly, they were self-serving statements, and not admissible as proof necessary to establish the defense set up. Love was called later and swore to the facts contained in them.

It is a well-established general rule that a statement of a party, whether oral or written, which is of a self-serving nature, is not admissible in evidence in his favor: 22 C.J. 220; Tisch v. Utz, 142 Pa. 186. This rule has been applied where the effort was to make use of an affidavit of defense (Kittanning v. Kittanning Natural Gas Co., 26 Pa.Super. 355), a sworn claim in replevin (Guinn v. Vitte, 63 Pa.Super. 611), or letters setting forth the position of the party who offers them: Barrow v. Newton, 55 Pa.Super. 387. As was said by Justice STEWART, in considering a like contention: "The statement contained in the letter of the trust company written in reply to the demand made by the plaintiff for performance of the contract that McFadden had advised the company that the claim was contested and notified it not to transfer or mortgage the property, was not evidence of such fact. It was but a self-serving declaration": Megraw v. Hamilton Trust Co., 252 Pa. 425, 429.

Situations do arise, where correspondence is admissible, though phrases appear therein favoring the contention of the one presenting it, as in the case of the production of a letter necessary to show a demand for payment (...