Immel v. Herb

• Decision Date: 20 July 1910
• Docket Number: 54-1909
• Citation: 43 Pa.Super. 111
• Parties: Immel v. Herb, Appellant
• Court: Pennsylvania Superior Court

43 Pa.Super. 111

Immel v. Herb, Appellant

No. 54-1909

Superior Court of Pennsylvania

July 20, 1910

Argued November 10, 1909 [Syllabus Matter]

Appeal by defendants, from judgment of C.P. Berks Co., Aug. T 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.

Trespass to recover damages for the breach of a parol contract. Before Endlich, J.

The facts appear by the opinion of the Superior Court.

When Mrs. Mary Roland was on the stand, the following offer was made:

Mr. Young: We propose to prove that Mr. Immel, the plaintiff, stated to the witness that he contemplated the purchase of this dwelling house 824 Chestnut street; that the witness went there for the purpose of inspecting the dwelling and there met Mr. Jacob Shaaber, one of the defendants, and stated to him that she objected to the existence and operation of the foundry inasmuch as she intended to live with Mr. Immel; that Mr. Shaaber then assured her that the foundry would be removed and that on the plot of ground occupied by the foundry would be erected dwelling houses; that the witness communicated this statement of Mr. Shaaber to the plaintiff, and that the visit to the property by the witness was made in pursuance of an arrangement with the plaintiff that she would inspect the surroundings of the property with a view to his contemplated purchase.

Mr. Derr: For what purpose is this testimony offered?

Mr. Young: For the purpose of showing that her conversation with Mr. Shaaber, one of the defendants, was communicated to the plaintiff and that that statement, in connection with the statement made by H. John Herb, the other defendant, was the inducement for the purchase of the property at 824 Chestnut street.

Mr. Derr: This is objected to because the contract, according to the testimony of the plaintiff, was made at Mr. Becker's office, where the down money was paid, some time after the time at which it is proposed to prove by the witness this conversation with Mr. Shaaber occurred. That testimony would not tend to corroborate the testimony of the plaintiff as to what happened at Mr. Becker's office when the transaction was concluded by the payment of the down money and is not pertinent to any issue in the case. We conceive how this testimony might be used in contradiction perhaps, but it is not relevant or competent at this time, and it is generally irrelevant and incompetent. And I would like to repeat the objection that we made to the other offer that it is not proposed to show that the witness on the stand occupied any such relation to the plaintiff as made her able to receive a contract on the part of Mr. Shaaber and in behalf of the plaintiff.

The court admitted exception.

When Susan Bristley was on the stand, this offer was made:

Mr. Young: We propose to show by the witness that some time in the month of October, 1905, prior to the time that the contract for the purchase of the dwelling house 824 Chestnut street was entered into between the plaintiff and the defendants, she in company with Mrs. Mary Roland visited this dwelling house and there met Jacob Shaaber, one of the defendants; that Jacob Shaaber stated to them that the foundry then operated by Herb and Shaaber, the defendants, would be discontinued and the entire plot of ground would be built into dwelling houses; that this conversation between the witness and Jacob Shaaber, one of the defendants, was communicated to the plaintiff prior to the time that the contract for the purchase of the house was entered into; that the visit of the witness to the dwelling house was made as a prospective purchaser and was communicated to Mr. Shaaber.

Mr. Derr: This is objected to because what was said by Mr. Shaaber to the witness when she was going there as a prospective purchaser is particularly irrelevant to the issue trying in this case. It is evident that this visit was the same visit that Mrs. Roland testified to, and, at all events, is objectionable and inadmissible for the same reasons that Mrs. Roland's testimony was objectionable.

The Court: Admitted; bill sealed for defendants.

Verdict and judgment for plaintiff for $ 1,475. Defendants appealed.

Errors assigned among others were in refusing binding instructions for defendants; discharging rule for judgment for defendants non obstante veredicto; and rulings on evidence, quoting the bill of exceptions.

Cyrus G. Derr, with him Wm. J. Rourke, for appellants. -- The alleged contract was within the statute of frauds: Bender v. Bender, 37 Pa. 419; Thompson v. Sheplar, 72 Pa. 160; McCafferty v. Griswold, 99 Pa. 270; Walter v. Transue, 17 Pa.Super. 94; Miller v. Zufall, 113 Pa. 317.

The testimony submitted by the appellee to establish the alleged verbal contract was not clear and satisfactory, nor is the alleged verbal contract certain and unambiguous as to the land alleged to have formed the subject-matter, nor as to the nature and extent of the interest to be acquired therein by the appellee, nor as to the consideration to be paid, etc., and the court should have declined to submit the same to the jury by an affirmance of the defendant's second point which requested binding instructions: Bowers v. Bowers, 95 Pa. 477; Moore v. Small, 19 Pa. 461; Miller v. Zufall, 113 Pa. 317.

Walter S. Young, with him Isaac Hiester, for appellee, cited: Watterson v. R. R. Co., 74 Pa. 208; Drukin v. Cobleigh, 30 N.E. 474; Supervisors v. McQueen, 15 Hun (N.Y.), 551; Angell v. Duke, L. R. 10 Q.B. 174; Seago v. Deane, 4 Bing. 459; Preble v. Baldwin, 60 Mass. 549; Hancock v. Melloy, 187 Pa. 371; Riggles v. Erney, 154 U.S. 244 (14 S.Ct. 1083); Poorman v. Kilgore, 37 Pa. 309.

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

OPINION

MORRISON, J.

This was an action of assumpsit brought to recover damages from the defendants for the breach of a verbal contract alleged to have been made between the parties in October, 1905, as an inducement to the plaintiff to purchase from the defendants a certain house and lot in the city of Reading for the sum of $ 5,500. The house and lot were conveyed to the plaintiff by deed from the defendants dated November 20, 1905, in pursuance of an agreement made on October 21 of the same year. It is conceded that the plaintiff paid the full amount of the purchase money. The house and lot were near a foundry owned and operated by the defendants. The plaintiff alleging that at the time of the purchase the defendants had agreed verbally to remove the foundry and to erect dwelling houses in its place within two years, brought this action against the defendants to recover damages for a breach of the alleged verbal contract, in which action the plaintiff claimed and was allowed to recover on the basis of an alleged difference between the market value of the property purchased with the foundry there and the market value of the property purchased with the foundry removed and about twenty dwelling houses erected on the ground. The verdict of the jury was in favor of the plaintiff for $ 1,475.

At the trial the defendants asked the court to give a binding instruction in their favor and the said instruction having been declined, a rule for judgment non obstante veredicto upon the whole record and a rule for a new trial were obtained, and subsequently both of said rules were discharged.

After the verdict and before judgment, Jacob Shaaber died and Chas H. Shaaber, administrator, etc.,...