Sober v. Moony , 48 Pa. Super. 92 ( 1911 )

Opinion by

Beaver, J.,

This is an appeal by the defendants.

The first, second and third assignments of error, which relate to answers to points, do not show exceptions by the appellants, or their allowance by the court, or the sealing of bills. The appellee specifically excepts to these assignments and insists that they should not be considered. We regard the exception as well taken. In Rodovinsky v. Knitting Co., 5 Pa. Superior Ct. 636, our late Brother Smith said: “Adequate pleadings are as necessary in the appellate courts as in the courts of first instance. The assignment of errors, when filed, constitutes the declaration of the appellant and specifies the errors alleged to have been committed by the trial court. Each error must be specified separately and distinctly, and to these the appellee should plead or demur, as the circumstances may warrant.” In closing the opinion in this case, it is said: “The assignment must be self-sustaining, and contain in substance the bill of exceptions on which it is based. In the absence of this, there is nothing to entitle it to consideration.” These specifications of error are not self-sustaining. They do not show that an exception was taken by the appellants, or that one was allowed by the court and a bill sealed for the appellants. The reason for the necessity of this has been often pointed out. The record in this court consists of the assignments of error and of the opinion of the court when filed. If, therefore, that record is to be intelligible, the assignments of error must be self-sustaining, because they can be tried only by themselves after the record of the court below has been returned to it. It should, therefore, affirmatively appear in the first three assignments of error, as it appears in the others, that exceptions were taken and allowed and bills sealed, otherwise the assignments are not self-sustaining and are not entitled to consideration. The exception of the appellee is, therefore, sustained, and they are not considered.

The testimony admitted by the court, as specifically set forth in the fourth and fifth assignments of error, was, we think, properly admitted. If the defendants’ letter heads held out E. L. Seely as the general manager of their company, it was proper to show that this was done and that the plaintiff inquired for him and negotiated with him in regard to the contract which was made, because of such representations. This, together with the testimony of the subscribing witness, that the written agreement was approved by the partner, Mr. Moony, would justify a finding by the jury, if they believe the witness, that Seely had authority to sign the agreement.

The objection to the admission of the written agreement because of the erasure of the month January and the substitution of October in its place, did not of itself invalidate it, so as to justify the refusal to admit it in evidence. An erasure admits of explanation. It may explain itself. It may depend on a variety of circumstances— whether or not the erasure and the addition be made with the same pen and the same ink and in the same handwriting as other parts of a written instrument. All this was matter for the jury and we think the court properly admitted the written agreement and submitted the questions involved to the jury. In addition to all this, and as conclusive of the question, by the rules of the court below a fact set forth in the plaintiff’s statement, and not denied by the defendant in the affidavit of defense, is regarded as established. There is no intimation in the affidavit of defense in this case that the agreement, a copy of which is attached to the plaintiff’s statement, was in any way altered. There is no allegation of forgery or of alteration in a material part and, in the absence of any allegation of the invalidity of the agreement on this account in the affidavit of defense, we are unable to see why the agreement was not properly admitted.

The sixth assignment of error relates to the refusal of the court to grant a nonsuit. From what has already been said, it will be apparent that no nonsuit could properly have been granted. The question of the approval of the agreement by the acting partner before it was sent to the plaintiff to be executed by him, being a question of fact, it was clearly in the case and could not be eliminated and, as already intimated, if that was the fact, the defendants'were clearly bound by it.

The verdict having been rendered by the jury as to the validity of the written agreement and of its binding character upon the defendants, which questions were properly-submitted to them, we think the court was entirely justified in denying the motion for a judgment n. o. v., which is the substance of the seventh assignment of error. All of the assignments are, therefore, overruled.

Judgment affirmed.