Rinesmith v. Peoples' Freight Railway Co.

• Decision Date: 16 June 1879
• Citation: 90 Pa. 262
• Parties: Rinesmith <I>versus</I> Peoples' Freight Railway Co.
• Court: Pennsylvania Supreme Court

Page 262

90 Pa. 262

Rinesmith versus Peoples' Freight Railway Co.

Supreme Court of Pennsylvania.

May 14, 1879.

June 16, 1879.

May 14th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, TRUNKEY and STERRETT, JJ. PAXSON and WOODWARD, JJ., absent

Error to the Court of Common Pleas of Perry county: Of May Term 1879, No. 149.

Charles J. T. McIntire and Charles A. Barnett, for plaintiff in error.—The evidence should have been admitted, because it related to the res gestæ: Whart. on Evid., sect. 529; Hildeburn v. Curran, 15 P. F. Smith 59; and to show that the defendant's subscription was made upon the verbal conditions stated.

J. E. Junkin and W. A. Sponsler, for defendant in error.— As defendant did not subscribe at the time of the alleged conversation, when Sheibley was present, the evidence offered was as to a collateral fact. This the defendant could not have offered in chief, if objected to, under the well-known rule, that as to immaterial and collateral matter developed on cross-examination, the party must abide the answer. Then defendant proposed to prove by Sheibley what Milliken had said. It was not part of the res gestæ; the defendant refused to subscribe and both parties separated.

Mr. Justice STERRETT delivered the opinion of the court, June 16th 1879.

One of the main grounds of defence in the court below was that the subscription in suit was made not only on the written condition annexed thereto, but also upon the further express verbal conditions that the defendant should not be required to pay his subscription unless $100,000 of stock was subscribed in the county, and that he should retain the subscription, or the book containing it, until that amount was actually subscribed. The evidence was clear that the written condition had been fully complied with, but the testimony as to the alleged verbal condition was directly conflicting. The defendant testified, without objection, to matters of inducement to his subscription, including the terms proposed by Dr. Milliken to Sheibley and himself, which, he alleges, were shortly afterwards accepted by him; that while he subscribed expressly on the conditions above stated, they had not been performed; that subscriptions to the amount named had never been obtained, and that he was not permitted to retain the subscription-book, as had been agreed upon. On the other hand, Dr. Milliken, on behalf of the company, testified that no such verbal conditions were attached to the subscription, and denied h...