McDowell v. Oyer
| Decision Date | 25 July 1853 |
| Citation | 21 Pa. 417 |
| Parties | McDowell <I>versus</I> Oyer. |
| Court | Pennsylvania Supreme Court |
159-160; 1 Chitty 147-8; 1 Saund. 131. That this plea did not put the book account in issue. That the causes of action in this case could not be joined, reference was made to 5 Harris 495.
As to the second assignment, it was observed that the instruction was calculated to mislead the jury.
3. It was alleged that, under the contract in dispute, the land could not have been recovered as possession was not taken in pursuance of the contract, the boundaries not marked, and the evidence as to the contract uncertain as to the quantity of land. That to enable the party to recover the value of the land, would be equivalent to a recovery of the land itself. The value of the land should not be recovered without regard to the amount of labor performed. It was contended that the measure of damages in a case of this character, should be a fair and reasonable compensation for the labor actually performed.
On the part of the plaintiff in the suit, reliance was placed on the declarations of the party. This, it was alleged, was a dangerous species of testimony on account of the facility with which it may be fabricated, and the difficulty of contradicting it, and its liability to mistake. It was alleged that the value of the service rendered should be the rule. It was said that the weight of decision was against considering the value of the land as the measure of damages: 17 Maine Rep. 296; 9 New Hamp. 298; 5 Id. 133; 1 Fairf. 81; 1 Vermont 69; 1 Binn. 454; Ewing v. Tees, 8 Barr 197; Hastings v. Eckley's Administrators, opinion of WOODWARD, J., in the Common Pleas. In Jack v. McKee, 9 Barr 239, the contract was to give a specified farm containing an ascertained quantity of land (100 acres). It was alleged that, in the present case, the evidence as to the quantity of land was of an uncertain character. The Troutman property, referred to by some of the witnesses, contained six acres and some perches. The property occupied by Wyand, which was spoken of by other witnesses as the property meant, contained one or two acres testified to be worth $150 or $200. Other witnesses testified to a declaration as to fourteen acres.
Reilly, for defendant.—It was alleged that the declaration being in trespass on the case upon promises, the plea of not guilty was a nullity and denied none of the allegations in the declaration.
This was not an action to recover damages for the non-performance of a parol contract, for the purchase of land; but on a contract for services to be paid for in land, and was brought to recover the value of such services on a breach of that contract. In Jack v. McKee, 9 Barr, the same kind of action was brought, the same kind of declaration filed, and there was the same joinder of counts. So in Bash v. Bash, Id. 260. In the case of Gangwer v. Fry, 5 Harris 495, it is not decided that in an action to recover compensation for services, and also to recover for work done and money paid, as in this case, an account for work done and money paid cannot be admitted in evidence.
3. The statute of frauds applies only to a parol contract for the sale of land. This was an action on a contract for services to be paid for in land. In Jack v. McKee, 9 Barr 235, it was decided that such a contract was not within the statute of frauds. That the value of the land was the measure of damages, reference was made to Kelly v. Foster, 2 Bin. 6-7; Rohr v. Kindt, 3 W. & Ser. 563; Jack v. McKee, 9 Barr; and Bash v. Bash, Id. 260.
The opinion of the Court was delivered, July 25, by BLACK, C. J.
This was assumpsit. The plaintiff proved (or produced evidence tending to prove) that there was a contract between him and the defendant's intestate, by which he (the plaintiff) was to serve Myers as his agent and the manager of his business, until his (Myers') death; that for this service Myers was to give him a certain piece of land; that the service was rendered accordingly, but Myers died without conveying the land, and without making any provision for carrying his part of the contract into effect. The plaintiff also had a book account for blacksmith's work.
The declaration contained the common counts, and a special count averring the contract above mentioned, performance by the plaintiff, and a breach by the other party.
The three errors assigned are, (1), that the book account was improperly admitted in evidence; (2), that in the charge the jury were told that the contract was faintly denied; and (3), that they were erroneously instructed to regard the value of the land as the measure of damages.
I. All the counts in this declaration are in assumpsit. The cause of action on the contract could not have been set out in any other form. It is entirely too late in the day to deny that the common counts for work and labor may be joined with a special count. The plea of not guilty to a declaration in assumpsit is barbarous, and if the plaintiff had demurred, the judgment must have been for him. The best we can do for the defendant is to suppose that he has pleaded a proper plea. Assuming thus much in his favor, the admission of the book account was perfectly right.
II. Nine witnesses testify to the declarations of Myers, that Oyer had given up his intention of moving to the west, to stay with him, and attend to his business, in consideration of his promise to give him a piece of land. He did not state the bargain with equal distinctness to all the witnesses, and in some of the conversations he seems to have referred to one tract, and in others to a different one. The judge said that the defendant denied faintly the fact of there being such a contract, and contended that if there was any contract at all, it related to the least valuable of the tracts; and on this subject the evidence being contradictory, it was submitted to the jury to say what land was designated in the contract.
I cannot see how we are expected to treat this as an error fatal to the judgment. If this remark of the Court were demonstrated to be a mistake — if it were proved to our entire satisfaction that the contract was denied not faintly, but loudly — we could not reverse on that account; for it concerns no matter of law, and our jurisdiction does not extend to the correction of any but legal errors. Besides, when there are no written points submitted, the statement by the Court of the counsel's line of argument must be conclusively taken as true, that being the only evidence on the subject which the record affords. In addition to this, we think there was no just ground on which an absolute and total denial of the contract could be safely rested. That there was some contract like the one alleged was very clearly proved. If, therefore, the Court had said that it was not denied at all, it would be but justice to the candor of the defendant and his counsel to believe the statement.
III. The main question in the cause is, whether the right rule was adopted for assessing the damages. The Court charged that the measure of compensation for the plaintiff's service was the value of the land which the other party had promised to give for it.
This case is in every word and circumstance precisely like Jack v. McKee (9 Barr 235), in which this Court unanimously decided that one who gives his personal services on a contract to be paid in land, is entitled, if he does not get the land, to get its value. The same thing was held in Bash v. Bash (9 Barr 260). It had been previously established as the law of New York, in Burlingame v. Burlingame (7 Cow. 92), and a point nearly akin to it was settled here in Rohr v. Kindt (3 W. & Ser. 568). These decisions did but embody and stamp with the impress of judicial authority the almost universal opinion of the legal profession, and the innate sense of right which pervaded the popular mind. Although such cases must have arisen very often, the two taken up in 1848 from Westmoreland, were the first that reached this Court. To my certain knowledge, the same rule had many times before that been acted on and sustained by the Courts of Common Pleas, and no question made of its correctness, though it stood in the way of being challenged by some of the ablest lawyers in the western part of the state.
The judgment we are about to give might well be rested on the mere authority of the cases I have cited. When a point has been solemnly ruled by the tribunal of the last resort, after full argument and with the assent of all the judges, we have the highest evidence which can be produced in favor of the unwritten law.
It is sometimes said that this adherence to precedent is slavish; that it fetters the mind of the judge, and compels him to decide without reference to principle. But let it be remembered that stare decisis is itself a principle of great magnitude and importance. It is absolutely necessary to the formation and permanence of any system of jurisprudence. Without it we may...
To continue reading
Request your trial
-
Com. v. White
...if we could be blown about by every wind of doctrine, holding for true to-day what we repudiate as false to-morrow. McDowell v. Oyer, 21 Pa. 417, 423 (Pa. 1853) (emphasis in original). The sentiment expressed in McDowell remains as potent today as when it was written. There is no question t......
-
Petersen v. Magna Corp., No. 136542
...own standards when well-reasoned standards have been established in the laws of this country for over 150 years. As noted in McDowell [v Oyer, 21 Pa 417, 423 (1853)], when precedents are "free from absurdity, not mischievous in practice, and consistent with one another," they should be reta......
-
Rea v. Ford Motor Company, Civ. A. No. 67-286.
...an oral contract respecting real estate. Polka v. May, 383 Pa. 80, 118 A.2d 154 (1955); see also Thompson v. Sheplar, 72 Pa. 160; McDowell v. Oyer, 21 Pa. 417. In such case, however, the vendee's right to damages is restricted to monies laid out and expenses incurred on the faith of the ora......
-
Flagiello v. Pennsylvania Hospital
...in Knecht v. St. Mary's Hospital, 392 Pa. 75, 140 A.2d 30. * * * 'What Chief Justice Black said for this court in McDowell v. Oyer, 1853, 21 Pa. 417, 423, concerning stare decisis, is presently most apposite, viz., 'It is sometimes said that this adherence to precedent is slavish; that it f......
-
A constitutional significance for precedent: originalism, stare decisis, and property rights.
...the mode of relief, only; and that ought, and must be made, to meet the exigencies of the case."). (152.) See, e.g., McDowell v. Oyer, 21 Pa. 417 (1853). Although the court considered a prior line of cases to have been wrongly decided, the court described the "principle of great magnitude a......