Crossgrove v. Himmelrich , 54 Pa. 203 ( 1867 )

The opinion of the court was delivered, by

Thompson, J.

1. The receipts objected to, the reception in evidence of which constitutes the 1st bill of exception, were properly received. They not only showed the contract between the parties who it was alleged made it, but, what was indispensable to the plaintiffs in their effort to recover back the money paid on the contract, they showed the payment of a large pi’o-portion of it by the plaintiffs to the defendants. The objection really was that the defendants were not partners in the transaction and the receipts not evidence. But when the receipts were offered it was proposed to follow them with proof that the contract was made with and for the benefit of all the defendants. This made them evidence, and if the offer failed, as it did not, the whole offer would go for nothing. It is thus manifest that this error should not be sustained.

2. The 2d alleged error is to the admission of Brobst’s declarations that he was a partner in the transaction. He was sued as a partner, and of course his declarations were evidence against himself: what effect they might have on the others was another thing ; but that was not regarded, for no instructions were asked as to that, for the reason, I presume, that the acts and declarations of the others abundantly showed he was a partner. This error is not sustained.

3. The 3d error needs but little notice. The defendants being called on to deliver the hay contracted to be delivered to the plaintiffs, presented the latter with an order on G. & D. Wilcox, of Bradford county, for 200 tons. It was presented, refused and returned. Of course it was evidence, to be followed by what occurred at its presentation. It could not have been spoken of without this, unless lost or destroyed.

4. This error arises on the admission of the deposition of D. Wilcox, a witness offered by plaintiff to prove the presentation and refusal of the order above mentioned. The first objection to it was that the testimony of the witnesses was not taken down in the handwriting of the magistrate. This was no valid objection, unless it had also appeared that it had been written by the party, his agent or attorney, which was not pretended: Summers v. McKim, 12 S. & R. 405. The magistrate’s hand or arm was. paralyzed, and hence he employed a clerk, as it was proper for-him to do.

Another objection was that the witness refused to answer a question asked him by the defendants’ counsel on cross-examination. The question had no bearing on the issue trying whatever, or the objection might have been good. It related solely to matters between the witness and the defendants, and whatever the answer might have been, it could neither have been contradicted or disputed by the party asking for it. The refusal did the defendants not the slightest injury. This clearly appears from the question itself. It ought not to have been asked, and it .would be contrary to all reason to hold that the refusal of a witness to answer a question, which a court would not have required him to answer because of irrelevancy, should have the effect to destroy the answers to what was properly asked. “ Evidence,” says Blackstone, vol. 8, p. 367, “ is that which demonstrates, makes clear or ascertains the truth of the very fact or point in issue.” Had the cross-examination been with any view to this rule, the question never would have been asked, and we should not have been troubled with it. To allow the plaintiffs in error to make anything out of the objection, would be to countervail a well-known principle, which says that a party shall not take advantage of his own wrong. There is nothing in this assignment of error.

5. The 5th bill of exception is to the admission of the written statement of the demand on Wilcox for the hay on the defendants’ order, his refusal, and notice of the election of the plaintiffs to rescind the contract. The objection was that it contained declarations of the plaintiffs in their own favor. Suppose it did, it was made to the faces of the defendants, and not behind their backs, and they might have denied the truth of any declaration in it and required proof if they thought proper. This objection was somewhat extraordinary certainly. What parties say'to each other about a subject of dispute is always evidence if a suit grow out of it. I can hardly suppose that in taking this exception the counsel expected to reverse this rule, and I am therefore at a loss to conjecture why it was taken.

6. The remaining exceptions are to the answers of the court to points of the defendants. The only one needing any notice is the. answer to the 8th point.

It certainly was no error to charge that if the plaintiffs were in a condition to rescind the contract, they could recover back the money paid in an action of assumpsit. That was the form of action adopted, and the narr. contained not only a special count setting forth the circumstances of the rescission, the election to rescind, but the promise to pay the money back. This was proper, whether the promise was express or implied. The form is the same in both cases. There are also general counts 'for money had and received, which was eminently proper in a case of this kind. There could, therefore, undoubtedly be a recovery in the form of action adopted, if there was a proper case for rescission shown.

The defendants in error contend that there was not, because the plaintiffs did not tender, at the time they claimed to rescind the contract, an entire performance on their part. An offer of a readiness or willingness to pay for the hay would have been material if the action had been in affirmance of the contract: Tyson v. Robison, 10 Wright 286. But this is an action in disaffirmance of the contract to recover back the price paid. A tender or offer of the money which would be due on the completion of the contract, was not essential, when it appeared otherwise that the plaintiff’ had fully complied with his part of the contract up to the time of electing to rescind it. That did appear in this case by abundant testimony. The plaintiff’s had paid for all the hay which had been delivered to them on the contract, and as much more. The defendants delayed fulfilling their part, and at last gave an order for the balance, which the plaintiff’s were at trouble and expense to present, which, as already seen, was refused. Here was a failure to complete the contract by the defendants without any default on part of the plaintiff’s, and under these circumstances the plaintiff’s were entitled to rescind, and to recover so much money as they had advanced on the contract beyond the hay received. ■ Smethurst v. Woolston, 5 W. & S. 106, 12 Harris 37, and Id. 190, are authorities clear upon the doctrine stated, and we need not elaborate the point further. Seeing nothing to correct, the judgment is affirmed.