Filbert v. Behney , 45 Pa. Super. 24 ( 1910 )

Per Curiam,

This action was brought for the recovery of damages for breach of a written contract for the sale of real estaté. It is undisputed that at the time the agreement was entered into the plaintiff paid to the defendant $300 on account of the purchase price, and that three days after-wards the latter conveyed the property to another party, taking a bond to indemnify him against liability. The defendant’s contention was that the conveyance to the third party was made pursuant to an oral agreement entered into on the same day, but before the defendant’s agreement with the plaintiff was made, and that the latter knew of this prior oral agreement at the time the agreement with him was entered into. It is argued that if this was the fact, the plaintiff was not in position to claim damages upon the ground of a fraudulent breach of the contract with him. We need not discuss the question as to the effect upon the measure of damages of the plaintiff’s knowledge of the prior oral contract; for in any view of the case he was entitled to recover back the down money. Hence, the point, the refusal of'whiciris the subject of the first assignment of error, was too broad, and as the affirmance of it, as it was put, would have been error, it was not error to answer it by a simple negation. As none of the instructions given in the general charge are assigned for error, the appellant is not in position to argue against the correctness'of the judge’s statement of the. questions of fact upon which the case turned. In saying this, we are not to be understood as intimating that this was erroneous; on the contrary, we are of opinion that it was not erroneous.

The argument of appellant’s counsel, in support of the second assignment of error, is correctly and adequately answered by the learned judge in his opinion overruling the motion for a new trial as follows: “The rejection of a certain letter from plaintiff to defendant, offered by the latter to corroborate his assertion of belief, could not be error unless what was said in the letter supported it by amounting to proof in some degree of the alleged agency. The letter, however, dated Oct. 3, 1906, whilst speaking of an undisclosed ‘customer’ of plaintiff’s with reference to the property, distinctly declared that this party had changed his mind and had instructed plaintiff not to buy for him. When after the lapse of about two weeks plaintiff came back to negotiate for the purchase in his "own name, defendant could hardly assume he was still or again acting for that ‘customer,’ much less that he was acting for the particular party to whom defendant eventually conveyed. If he so assumed, surely the letter had no tendency to justify the assumption. If it proved anything on the subject of plaintiff’s agency for anyone, it negatived its existence. It was therefore not evidence, either corroborative or otherwise, of any fact pertinent to the case.”

The assignments of error are overruled, and the judgment is affirmed.

Porter, J., concurs.