Ott v. Oyer's Executrix.
| Decision Date | 19 May 1884 |
| Citation | 106 Pa. 6 |
| Parties | Ott <I>versus</I> Oyer's Executrix. |
| Court | Pennsylvania Supreme Court |
Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.
ERROR to the Court of Common Pleas of Northampton county: Of July Term, 1883, No. 147.
Assumpsit, by Sarah Oyer, executrix of John J. Oyer, deceased, against William Ott, upon a promissory note given by the defendant to John J. Oyer.
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W. S. Kirkpatrick (with whom were E. J. Fox & Son), for the plaintiff in error.—In the first and fourth assignments we complain that the court insisted in its charge upon too strict a measure of proof. Our defence was that the note was without consideration, that there was no settlement between Wm. Ott and John J. Oyer, and no balance was ascertained between them; that the note was not intended to be retained as such, but having served a temporary purpose was to be returned. We were only bound to satisfy the jury of the facts constituting our defence by the weight of evidence. The court said to the jury that we must establish it to their entire satisfaction, and by evidence in which they had implicit confidence. In other words, we were required to demonstrate our defence to a certainty. The expression, entire satisfaction, excludes all doubt, and is even stronger than the proof implied in the phrase, "beyond a reasonable doubt." Even if our defence should be considered as involving the element of fraud, this instruction was too strict: Young v. Edwards, 22 P.F.S., 257; Greenleaf on Ev., vol. 1, p. 18, § 13; Hiester v. Laird, 1 W. & S., 245. The error complained of in the second and third specifications is that the court misled the jury as to the proper test of the credibility of Dr. Bogardus. The impression conveyed by the court is that Bogardus was contradicted, and the jury were virtually told to consider the testimony of Ott and Phillips as if they had given different versions of the same conversation. The court further assumes that Oyer must always have been consistent with himself in his declarations on this subject on all occasions, and that he could not have made a declaration less favorable to himself on one occasion than another. The error complained of in the fifth and sixth assignments is that the court confined the whole of the defendant's defence to the testimony of Bogardus, and made it dependent upon the jury's belief in his testimony alone. The principal error complained of in the eighth and ninth assignments is that the court gave a peremptory and binding instruction that under the plea of payment as a set-off we were confined to but two items, to wit: One-half of the tax of $16.80 and the last Peter Frutchey judgment of $585. This was clear error. Our plea of payment, under which we were entitled to prove our counter-claim, was filed December 17, 1879. We were entitled to have the jury consider all payments of which there was any evidence whatever, made by Ott for Oyer, or moneys of Ott received by Oyer within six years prior to that date. At the conclusion of the charge the defendant proposed to send out with the jury the record of the judgments given for the purchase money of the property bought by Oyer and Ott, and paid by the latter. The court, in the presence of the jury, refused to allow the judgments to go to the jury, except the last one, which was the one for $585. The court thus excluded from the jury material evidence, going to show the real state of the indebtedness between Oyer and Ott at the time of giving the note.
Henry W. Scott for the defendant in error.—In considering the charge of the court the whole of it must be taken together: Blair Iron & Coal Co. v. Lloyd, 3 W. N. C., 103; Bitner v. Bitner, 15 P. F. S., 347. In that part of the charge embraced in the fourth assignment, upon the same subject and to the same witness, the measure of proof stated in the first to be required, and to which exception is taken, is said to be "by the weight of the evidence." So it is repeated in the same connection immediately afterwards.
In the fourth assignment, when the court said the weight of the evidence is to appear by testimony in which the jury must have "implicit confidence," the reference was to the credibility of the witness, not to a measure of proof. On December 17, 1879, defendant filed his equitable plea, which permitted proof of counter-claim. No such claim, however, could be set off upon which a right of action accrued more than six years prior to the filing of the plea. This was practically the statement of law complained of in the eighth assignment, and was correct. Whether the statement of fact, wherein the court said, "As I recollect it, there are but two items where the money was paid within six years," was correct or not is not material. If the court was wrong in recollection of testimony this is no error. Mis-statement of fact by the court is not ground for reversal, unless there are binding instructions: Hamet v. Dundass et al., 4 Barr, 178; McDowell v. Oyer, 9 Harris, 422; Bitner v. Bitner, 15 P. F. Sm., 347. The action of the court below in sending out, or refusing to send out, documents with the jury, is discretionary, and not the subject of error: Spence v. Spence, 4 W., 165; Hamilton v. Glenn, 1 Barr, 340; O'Hara v. Richardson, 10 Wr., 389. A paper will not be allowed to go to the jury containing a statement of items of some of which there is no proof: Morrison v. Moreland, 15 S. & R., 61.
This action is upon a note dated April 1, 1873, for $1,800. On January 11, 1878, the parties to the note made a contract with Boyer and executed a deed to him, giving Boyer until March 15th, the right to purchase a tract of land, and upon paying the money on or before that date the deed to be delivered to him by Pearson — he refused to pay. In the contract was an agreement between Oyer and Ott that said note should be deposited with Pearson, and upon consummation of the sale of the land the note to be given to Ott for $300, but should Boyer refuse to take the land the note to be returned to Oyer. Wilson testified that there was a great controversy between Oyer and Ott about the note, one contending it was right and the other that it was wrong; that the agreement respecting it was negotiated by himself without the parties coming together, and was afterwards embodied in the contract they made with Boyer.
Bogardus testifies that in the spring of 1873, Oyer came to his house and they conversed about the note, that Oyer said Ott did not owe him anything, that the note was given to get Daniel Ott to go home, and he would give it back to Ott. Philips testifies that a short time after the note was given he was at Oyer's house, that Mrs. Oyer remarked that Ott was mad about the note that was given when Daniel was home, and Oyer replied that he was willing to make the note right, it was not right, it was fixed to satisfy Daniel so there would be no bad feelings. Theodore Ott says that Oyer told him the note was not right, that Ott owed him about $300, but they had a settlement to make. This was a number of years after the note was given. Annie Ott testifies that at her father's house, Oyer told Mrs. Ott she should take up that note, that he did not want to go to the workhouse.
Weidman says that in 1873, Ott told him the note was not right, that he owed $1,400. Pearson heard Ott say he owed something on the note, but has no recollection of the amount.
Without remarking the testimony at length we note its salient points the better to understand the bearing of the instructions which are alleged to be erroneous. Daniel Oyer was a son and Ott a son-in-law of Oyer. Whether Daniel was seriously afflicted at the time the note was given is immaterial; it is enough that his near relatives, the parties to the note were alarmed by his conduct. The parties owned and worked a farm together, there is no evidence of a settlement of their transactions at any time — there is evidence tending to show that the note was given and received for the solace of Daniel, and not as evidence of the actual indebtedness of the maker to the payee. At first it seems the payee admitted it was not right, but they did not settle and ascertain what, if anything, was due from Ott to Oyer, and at last they quarreled.
The uncorroborated testimony of one witness is not sufficient to...
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