Pratt v. Patterson

• Decision Date: 08 May 1876
• Parties: Pratt <I>versus</I> Patterson.
• Court: Pennsylvania Supreme Court

81 Pa. 114

Pratt versus Patterson.

Supreme Court of Pennsylvania.

February 15, 1876.

May 8, 1876.

February 15th 1876.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Certificate from Nisi Prius: Of July Term 1870, No. 205.

COPYRIGHT MATERIAL OMITTED

I. Hazlehurst and E. S. Miller, for plaintiff in error, as to second assignment, cited Evans v. Reed, 28 P. F. Smith 415; 1 Greenl. Evid., sec. 168; Act of March 28th 1814, sec. 1; 6 Sm. Laws 208; 1 Br. Purd. 625, pl. 24.

T. Hart, Jr., for defendants in error.—A deposition of a witness disinterested when taken cannot be read if he afterwards becomes interested: Chess v. Chess, 17 S. & R. 409; Tilly's Case, Ld. Raymond 1009. The plaintiff was not offered to prove any fact not in evidence; ordering a nonsuit therefore worked no injury and there should be no reversal even if his rejection was improper: Wright v. Wood, 11 Harris 120; Winsor v. Maddock, 14 P. F. Smith 231. As to the rejection of the copy of plaintiff's letter he cited Milliken v. Barr, 7 Barr 23; Baldney v. Ritchie, 1 Starkie 338; Burton v. Payne, 2 Carr. & Payne 520; Taplin v. Atty, 3 Bingh. 164.

Mr. Justice MERCUR delivered the opinion of the court, May 8th 1876.

The plaintiff brought this suit to recover commissions as a real estate broker. In a former suit between him and the testator, about the same subject-matter each party had testified and the testimony had been reduced to writing. The verdict in that case was set aside and the suit discontinued. This suit was afterwards brought between the same parties. Before the trial the defendant died and his executors were substituted. On the trial the notes of the plaintiff's testimony taken in the former suit were offered in evidence and rejected by the court. This is assigned for error.

The competency of this kind of evidence under similar circumstances, received a careful consideration in Evans's Adm'x v. Reed, 28 P. F. Smith 415. That case differed in this. There the notes of testimony of the deceased party were held admissible in the same suit in which they were taken; here the testimony is that of a surviving party, offered in a subsequent suit involving the same subject-matter against the executors of the deceased party. There it was said "if the deposition of a party be duly and regularly taken so as to be admissible in evidence in a pending case it is very clear that it would be admissible in a subsequent suit, between the administrators of the parties involving the same subject-matter." Here it is a subsequent suit, tried after the death of one of the parties, and involving the same subject-matter. The very case assumed there, substantially exists here. In each case the testimony was not only admissible when taken, but had actually been given in evidence. It must not be overlooked that the Act of 15th April 1869 is an enlarging, not a restraining act. It makes no witness nor evidence incompetent that was competent before its passage. Sheetz v. Norris, antea, p. 100.

The first section of the Act of 28th March 1814, Purd. Dig. 625, pl. 24, declares: "Any deposition taken or to be taken in any cause, which by the rules of law may be read in evidence on the trial of the cause in which it is or may be taken, shall be allowed to be read in evidence in any subsequent cause wherein the same matter shall be in dispute between the said parties or persons, their heirs, executors, administrators or assigns." The third section of the Act of 15th April 1869 authorizes the testimony of all witnesses made competent by that act to be taken "by deposition or commission issued as the case may require." In Evans's Adm'x v. Reed, supra, the notes of testimony are considered...