Rothrock v. Rothrock , 195 Pa. 529 ( 1900 )

Opinion by

Mr. Chief Justice Green,

There was no objection to the competency of the witness Henry Rothrock when he was offered, nor until after he had testified to the sale of the farm to him, the execution and delivery of the deed to him, the execution of the bond and mortgage by him, the fact that he had sold and delivered deeds for three pieces of the land to three different persons, the fact that he owed nothing for the land outside of what was in the bond and mortgage, and the fact that he paid money to the administrators April 15, 1876, and that this was the same day that he delivered the three deeds to the purchasers from him. He was then asked, still without objection: “Q. State whether or not you got a receipt from the administrators for that amount. A. I did. Q. (Showing paper.) State whether or not that is the receipt. A. That is the receipt. Q. State whether or not the money for which this receipt was given was to be credited on that bond ? A. It was. The money I paid and the receipt I hold after the 4th day of April, 1876 was to be credited on the bond.” He had previously testified as follows: “ Q. State whether or not you made any other payments that are not credited on the mortgage ? A. I have. Q. Can you tell the amount? A. Well there is something over $1,500. (Objected to.) Q. State whether or not that was a receipt for your interest. A. That was a receipt for my interest.” The expression “ objected to ” is the note of the stenographer. But the record shows that no cause of objection was specified, no ruling of the court is stated, no exception was taken, and no assignment of error is made on this objection, or that in any way relates to it. It is therefore not to be considered in any other light than as a mere passing objection not pressed and not ruled upon by the court. This being the statement of the testimony, the receipt was offered in evidence and then for the first time an objection was made by the counsel for the plaintiff to the competency of the witness. The objection was sustained and the receipt was not admitted. Later on it was admitted when offered under the testimony of a disinterested witness upon proof of handwriting.

It is impossible to hold that the whole of the testimony of Henry Rothrock was excluded by the refusal of the court to admit the receipt. No objection for incompetency was made until after his testimony had been received. No motion was made to strike out his testimony, and no direction to the jury was asked for, or given, to disregard his testimony. In this condition of the record his testimony remains and was entitled to consideration both by the court and the jury.

But whether his testimony was in or out of the case, is not a matter of any great consequence. The other facts in evidence entirely undisputed, are very much more than sufficient to justify the verdict of the jury. The whole transaction between the parties was fully proved, the receipt was shown to be in the handwriting of John Hoffer, he was a good and correct business man, there was no proof of any other money transaction between him and the witness, and there was full proof of this with all its details; the receipt was signed by Hoffer as administrator, it was given on the very day when the papers were actually transferred which was not the day of their date and the deed contained an express receipt for the whole of the purchase money including this. Hoffer filed an account on April 13 signed and sworn to, in which he charged himself with the whole of the purchase money; neither Hoffer nor any of the heirs made any demand for this money as not having been paid. Hoffer lived until December, 1885, nine years after the bond was due; Judge Hoy who prepared all the papers involved in the entire transaction, acting as counsel for the estate, lived until August, 1887, eleven years after the bond matured; the widow lived until 1894, and the heirs who were in need of money and whether they were in need or not, would naturally require payment of money which was due them, never even raised a question as to the payment of this money on the bond for a period of twenty years after it became due to them if it was unpaid. It is simply incredible that this money was due during all this time, or that any of the parties including the administrator and his counsel so regarded it. The question whether it had been paid was a pure question of fact which would in all circumstances have to be decided by a jury, and which was carefully and correctly submitted to them by the court. It would have been the gravest error to withdraw it from their consideration. We are thoroughly convinced that the verdict was right and fully sustained by all the testimony. The assignments of error are dismissed.

Judgment affirmed.