Immel v. Herb

• Decision Date: 18 July 1912
• Docket Number: 189-1911
• Citation: 50 Pa.Super. 241
• Parties: Immel v. Herb, Appellants
• Court: Pennsylvania Superior Court

50 Pa.Super. 241

Immel v. Herb, Appellants

No. 189-1911

Superior Court of Pennsylvania

July 18, 1912

Argued November 15, 1911

Appeal by defendants, from judgment of C.P. Berks Co., Aug. Term 1907, No. 60, on verdict for plaintiff in case of George W Immel v. H. John Herb and Charles H. Shaaber, Administrator of Jacob Shaaber, deceased.

Assumpsit for breach of contract. Before Endlich, P. J. See 43 Pa.Super. 111.

The court charged in part as follows:

[You remember that the property belonged to both and that Herb was doing the selling in this particular instance. If from that and all the other circumstances in the case bearing upon this question the jury believe that he was acting with Shaaber's consent and that what he said he said by Shaaber's consent and for him, then Herb's promise if he made any, might be looked upon by the jury as the promise of both Herb and Shaaber.]

[If, however, there was an injury to him, then the plaintiff would be entitled to damages, and the measure of those damages would be what is necessary to make him whole, to put him in the same position as he would have been in had the promise been exactly fulfilled. That would be the difference in the value of the property as it was and as it would have been had the contract been performed as made, if made, together with interest from the time when the contract, if there was one, was broken, -- taking into consideration, however, the fact that since the early part of this year the foundry business has been stopped and the foundry, at least in part, dismantled, and giving to that fact such effect upon the value of the plaintiff's property as you think it entitled to, remembering that the object to be kept in view is to make the plaintiff whole, not to punish the defendants but to make the plaintiff whole.]

Defendants presented these points:

3. The agreement set up by the plaintiff is one alleged to have been made in October, 1905, and is alleged to have been to the effect that Shaaber and Herb would remove the foundry and erect dwellings on its site within two years. Under such agreement no damages would accrue to the plaintiff until after the expiration of the two years, and as this action was brought June 26, 1907, more than three months before the expiration of the two years, the verdict must be for the defendants. Answer: Declined.

4. The lease made by Herb to Joseph Van Meter, dated March 7, 1907, after Herb had by deed of March 4, 1907, acquired Shaaber's interest, was not a breach by Shaaber and Herb of the agreement set up by the plaintiff in this case entitling the plaintiff to bring an action for damages before the expiration of the two years. Answer: Declined.

Verdict and judgment for plaintiff for $ 469.64. Defendants appealed.

Errors assigned were, above instructions, quoting them.

Reversed.

Wm. J. Rourke and Cyrus G. Derr, for appellants.

Isaac Hiester, with him Walter S. Young, for appellee.

Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

OPINION

PORTER, J.

There was a former appeal in this case, our decision upon which is reported in 43 Pa.Super. 111, and the plaintiff having again recovered a judgment in the court below, we have this second appeal by the defendants. The opinion of our Brother Morrison, who spoke for this court upon the former appeal, so fully and fairly states the facts, and so satisfactorily discusses the questions of law then presented, that we are relieved from the necessity of re-stating the facts or entering into any extended discussion of nearly all the questions of law attempted to be raised by the present specifications of error. Nothing can profitably be added to what our Brother Morrison said in disposing of the questions with which we then dealt, and we have discovered no reason for receding from the disposition which we then made of those questions.

The first contention of the defendants in the former appeal was that the oral contract upon which the plaintiff relied was within the statute of frauds and, for that reason, invalid. This court held that contention not to be well founded, for the reasons stated in the opinion then filed. The second ground upon which the defendants then relied for a reversal was founded upon the assertion that the testimony produced by the plaintiff to establish the verbal contract, alleged in his statement, was not clear and satisfactory. We said, in disposing of this question: " This question is raised by the fourth and twelfth specifications of error. We find in the record considerable competent testimony tending to support the plaintiff's contention as to the alleged verbal contract, as well as to the damages alleged to have been sustained, and although we have reached the conclusion that the learned court erred in the admission of the testimony embraced in the sixth and seventh specifications of error yet we are not convinced that if the testimony embraced in the sixth and seventh specifications had been rejected, the court would have been justified in withdrawing the case from the jury. And, therefore, the fourth and twelfth specifications are dismissed." All of the testimony to which Judge Morrison thus referred in his opinion was again presented at the trial which resulted in the judgment which defendants now seek to reverse, including the testimony of Mr. Manegold, to the effect that Herb, one of the defendants, had, in the presence of Shaaber, the other defendant, said to him that the promise that the foundry would be removed had been made to all the parties to whom houses had been sold. There was produced at the second trial additional evidence which would have warranted a finding that the building and sale of the houses, one of which the plaintiff was induced to buy, was undertaken by the defendants as a partnership transaction. The defendant Herb testified, upon cross-examination, directly upon this point:"

Q. You were partners in this building business?

A. Yes sir. No, sir; I am not continuing on with that plan; I changed that; I am not working with that plan now." Now if this answer had stood alone, it might be asserted that it was ambiguous and contradictory; that it could not be said whether or not the witness intended to testify that the relation between the defendants had been that of partners, so that one might bind the other in the line of the partnership business. This answer of the witness when taken in connection with his testimony immediately preceding this question, however, was clear and free from ambiguity. He had been examined with regard to a plan which Scholl had prepared for him and Shaaber, and had said that plan represented the way in which they had " figured out to see how the property could be used to the best advantage." He was then asked,...