Deen & Schoch v. Herrold , 37 Pa. 150 ( 1860 )

The opinion of the court was delivered, by

Thompson, J.

— There are very many exceptions in this case, both to the ruling of the court in admitting evidence, and to the charge in answer to points. Whatever apology there may be for multiplying exceptions on account of want of time for consideration, during the trial of causes at bar, it is hardly so excusable after opportunity for reflection afforded in the preparation of the case for review. It is hardly to be supposed that a court will be in error a dozen and a half of times in one case! It should be the study of counsel to concentrate their forces to an attack on vulnerable points, such as they are well persuaded are so, and pot waste their energies in uncertain enterprises. This course will be found less troublesome to counsel and court, and much more effective in arriving at logical and just results. These remarks are not intended as a reflection on the able counsel in this case, but to be applicable in all such cases as the present.

We shall notice but few of the numerous assignments of error on this record, for in most of them we cannot discover any ground for error or suspicion of error.

The exception founded on the permitted question to Hickeock as to how long the mill stood idle on account of defects in the machinery, did the defendant no harm, for he answered that he did not know.

We never reverse unless injury may have possibly occurred from the ruling of the court; certainly we never do where there is an entire failure to introduce the proposed erroneous testimony.

The measure of damages appropriate in such a case as this, was not invaded by this abortive offer, and hence even if the question were improper, it resulted in no injury.

Nor do we perceive any room for complaint of the instruction on the subject of the measure of damages. The court said, “ but the recovery will be subject to a deduction in damages consequent on the imperfections complained of, if such imperfections are sustained by the evidence.” This was intelligible and proper. If the plaintiffs thought it did not go far enough, they cannot now complain, for it was their duty to have asked a charge upon the law as they supposed it to be. Without this, an omission is not error for which we can, as a general thing, reverse.

There was no error either in allowing the jury to make a deduction in damages for defects proving themselves within the three months during which the machine was guarantied to perform well, although notice of defects was not given within that time. There was no contract obligation on Herrold to give such notice. The understanding was a positive one on the part of Dean & Schoch that it should perform well, and it was their place to see to it that it did so, or to bargain for notice of defects, if any existed. This they did not do, and it was enough for the defendant to show on the trial the deficiency of the engine within the three months, to entitle him to a defalcation of damages. He was not bound to give notice before. But in fact he did so by returning parts of the machinery for alteration and repair within the time. The court committed no error in their dealing with this part of the case.

Nor was there any error in permitting the jury to deduct damages for defects, under the circumstances of the case. The form of the obligation on which the judgment was entered, was that of a single bill with warrant of attorney to confess judgpent thereon. This, without more, was just the case for a defence for failure or partial failure of consideration, or for a deduction in damages for defects. And the defendant could not be precluded from making such a defence, unless he had estopped himself by admitting to the purchaser that he had no defence, or by encouraging him to invest his money in a purchase of the security. This was not pretended. Nor was it pretended that the assignee ever inquired of him as to any defence he might have. He therefore took the risk upon himself.

That the note or bill was intended as a means of raising money between the original parties is most likely; but in the absence of anything on the face of the paper, showing it to be a contract with the buyer to be answerable to him as an original party, and in the absence of all inquiry as to any defence, his right of defalcation to the extent of his damages remains.

The evidence on this branch of the case does not estop Iierrold. It was information from strangers as to the object of the single bill. But the obligor did not bind himself, either in the bond or outside of it, not to set up any equitable defence he might have when it should fall due. He cannot be precluded in this but by some act of his own. Where is there such act ? It is not in the form of the instrument, nor in a confession to the assignee, nor to anybody making inquiry for him, that he would not gainsay the obligation. The assignee could see that the day of payment was six months ahead, and if he was informed that it was to raise money to enable the obligors to perform their contract with the obligee, it should have occurred to him to inquire before he took an assignment whether there would be any defence to it for want of performance. If he had done so, he would most likely have been informed of the guarantee, and further that the period of three months, during which the guarantee would continue, would elapse before the note would fall due, and thus he might learn the liability there was of the judgment being imperilled by defective performance. But he neglected precautions, and took the risk on himself, and we cannot relieve him from the consequences. As we see no error in the record, the judgment is affirmed.