Barwell v. Wirth

The opinion of the court was delivered, February 23d 1869, by Sharswood, J. The 1st assignment of error is to the admission in evidence of the bills produced by the witness, Genther. He testified that he had shown them to the defendant, and said [135] “ when we had gone through the bills, defendant assented said bills were correct.” It is difficult to understand how, after such distinct evidence of an admission by the defendant of their correctness, they could have been excluded. It was'further objected to their admission that the bill, of particulars did not give any notice whatever of an offer to prove a new promise, based on the accounts which the witness said he had presented to the defendants. But a party who has to meet a defence of the Statute,of Limitations is bound in the first instance to prove his original claim, and he can prove it by an admission though made at the same time with his alleged new promise. If the ground here stated was a valid objection to the admission of evidence of the new promise, it did not apply to the papers as instruments to prove the original debt. There was no objection made or exception taken to the evidence of the new promise. The 2d assignment of error, that the court erred in admitting evidence of the alleged new promise, in the absence of special notice to that effect, either in the pleadings or the bill of particulars, has nothing whatever to support it. It is not necessary by any rule of our practice, where the parties go to trial upon the short plea of non assumpsit infra sex annos, and the replication assumpsit infra sex annos as in this case, that there should be any special notice by the bill of particulars or otherwise of an intention by the plaintiff to prove a new promise. The 3d error assigned is that the court erred in entering judgment for the plaintiff below on the point reserved. The power conferred on the District Court, and subsequently on the other courts of the Commonwealth, of reserving questions of law, arising on the trial of a cause, for the consideration of the court in bane is a very valuable one, as it prevents in many cases the delay and costs of a second trial to the parties and the public; but it is a power to be exercised with great caution and prudence, and the questions reserved should be stated on the bill of exceptions with precision. We recently had occasion to consider this subject in Wilde v. Trainor, at the last term in the Western District (9 P. F. Smith 439). Two rules were laid down in that case: First, that the reserved question must be one of pure law, and second, it must be such as, if decided in one way, would justify a binding direction to the jury for the one party or the other. Neither of the questions reserved in this case will stand the test of the first of these rules. They were, 1. “ Whether under all the testimony offered by the plaintiff she was entitled to recover.” That necessarily included questions of fact for the jury. Whether there is any evidence at all is a pure question of law for the court; whether it is sufficient to entitle the plaintiff to recover is a mixed question of fact and law, to be submitted to the jury under instructions. The language of this reserved point is open to this further criticism that it is confined to the testimony offered by the plaintiff. A deficiency in the plain [136] tiff’s evidence may however often he supplied by that of the defendant. 2. “ Whether any new promise was proven sufficient in law to take the claim out of the bar of the Statute of Limitations.” This is evidently liable to the same objection. It reserves not the competency of the evidence to go to the jury, hut.whether the new promise was sufficiently proved. Had the judgment on these reserved points been entered for the defendant non obstante veredicto, it must have been reversed, because the court had assumed to reserve and decide questions which are the proper province of the jury, and which it was not the intention of the law to permit to be withdrawn from them. Here, however, the case was submitted to the jury, and their verdict being for the plaintiff, judgment was entered thereon. We might in strictness affirm the judgment without more, but we may say that on the evidence we think there was enough to go to the jury. There was evidence of a promise to pay, but whether on the w'hole it was an absolute or conditional one was a question of fact. The defendant below referred to the source from which she expected to obtain the funds with which to pay. This was followed by a promise in terms absolute. The court could not say that there was any condition annexed to the promise. It is altogether unlike the case where the party promises to pay when able. There then would be nothing to leave to the jury, without some evidence of ability in the promissor. Judgment affirmed.