Sorg v. First German Evangelical St. Paul's Congregation

The opinion of the court was delivered, January 3d 1870, by Sharswood, J. — Upon the plaintiff in error is the onus of showing thát there is error in the record. The error must be manifest and is not to be made out by averment or conjecture. Hence if the rulings of the court below relate to the facts, it is his duty to furnish the evidence, or at least so much of it as may be necessary to make the exceptions intelligible. A proposition presented as a point may be abstractly true, yet in the concrete, in its application to the facts disclosed in the evidence, it may be irrelevant, and only calculated to mislead the jury from the true questions involved in the controversy. We have been furnished by the plaintiff in error with none of the evidence, except an agreement of August 1st 1865, and not the whole of that, as the defendants allege, for the specifications referred to in it and executed at the same time, and which therefore form a part of it, are not given. Whether the action was brought upon this agreement does not appear; for there is no copy of the declaration on the paper-book. All that we have are the docket-entries, which inform us that it was an action of debt. In undertaking to decide upon alleged errors, with such scanty materials, we would be groping in the dark. But, besides this, the rules of the court, in regard to assignments of error, have not been complied with. “When the error assigned is to the charge of the court, the part of the charge referred to must be quoted totidem verbis in the specificationRule VII., 6 Harris 578. Answers to points are clearly within this rule. All the assignments, except the first and second, are open to this objection. They set out a simple refusal or affirmance of the points, when every one of them was, in fact, accompanied with some qualification or explanation, not quoted in the specification. The tenth assignment, which relates to a part of the charge, does not quote the language of it. According to Rule VIII., we are justified in holding all these assignments as none. It is true that we may, and sometime have, overlooked such irregularities where manifest error has appeared and injustice been done. But that is not the case in this instance. Taking the charge and answers altogether, with the plaintiff’s own history of the case, we think that no substantial error was committed by the learned judge below of which the plaintiff in error has any right to complain. The plaintiffs made a written contract on the 1st of December 1865, to build a church for the defendants, according to plans and specifications of certain architects, and under their directions, for a fixed sum. They bound themselves to have the building under roof by December 1st 1865. They failed in this engagement, how or why we are not told. The building being still open and without a roof, on the night of December 22d 1865, [161] the wall of one of the gable ends was blown down by a violent storm. The plaintiffs, without any agreement or understanding with the defendants, rebuilt this wall. It is for the cost of this rebuilding, as extra work over and above the sum named in the written contract, that this action was brought. They now allege that the injury was owing to the want of skill in the architects and to defects in their plan. The jury were instructed that if the fall of the wall was a providential occurrence, without fault in either party, the plaintiffs could not recover ; that it was a contingency against which they should have provided in their contract. It was left to the jury to say, upon some evidence, we must presume, whether the time for putting the building under roof was enlarged, and that if they should find, from all the evidence in the case, that the time was enlarged, and that the plaintiffs did use all diligence, and were guilty of no default in the prosecution of the work; and that, from some default, neglect or interference of the defendants, or their architects and agents, this loss occurred, the plaintiffs might recover. As to the alleged settlement, we have not the evidence to enable us to judge of the accuracy of the charge, and the answer to the ninth point, which refers to the same matter; but if there was evidence, which we must presume, to submit the question as stated by the judge, it was an accord and satisfaction. There may have been error in this, but it has not been made to appear. The language of some of the answers may be open to criticism, as not entirely consistent with the general principles stated in the charge, but, taken altogether, the jury could not have been misled. .We are satisfied, then, that no injustice has been done by the verdict and judgment below. We come now to the consideration of the errors which have been assigned according to rule. The first is, because the court refused to permit A. Romach, a witness for the plaintiffs, to be asked “ what, in your opinion, was the cause of the fall of this wall, independently of the storm ? Was it or not from any defect of the plan; and if so, from what, and how could it have been prevented ?” This was objected to because the witness was not an expert, whose opinion was competent. He was a house-carpenter —had taken contracts to build houses, and professed, as he said, to know something about plans and specifications. This preliminary question of fact as to whether a witness is an expert, qualified to pronounce an opinion, as we have held in The Ardesco Oil Company v. Gilson, decided in this term (anth, p. 146), must in a great measure, be confided to the discretion of the court below trying the cause, and we will not reverse either on account of admission or rejection of such evidence, unless in a clear and strong case. This is not such a case. The witness was not a mason or architect, and professed no knowledge or experience in building walls. It would not have been error to have received. [162] it, neither can we pronounce it to be an error, which subjects the judgment to a reversal, that it was rejected. It lies within the limits of discretion. This renders it unnecessary to consider the other objection to these questions as leading. The second error assigned is in admitting Ernest Eohrkaste as a witness on part of the defendant. He was objected to on the ground of interest. The plaintiff offered a record of the Common Pleas, No. 442, March Term 1867. A copy of this record, or even of the docket-entries, is not furnished. But if we take the plaintiffs’ statement of it, in his history of the case, it was a judgment on a bond given to secure the plaintiffs on the building contract, in which the witness was one of the obligors, and on a scire facias issued upon it there had been a verdict for the defendants, but no judgment entered upon it. Admitting, however, that the original judgment still stood unaffected by this subsequent proceeding, how does it appear that the witness was interested in this suit ? a His suretyship was for the fulfilment of the written agreement by the defendants — the payment of the sum therein stipulated — which had been paid in full, and the amount claimed in this action was no part of that sum, but something extra and beyond it. It was also objected that the witness was a trustee of the church and a member of the building committee. This appeared, indeed, by the written agreement. But the trustees of charitable or religious societies, having no personal and private interest in the property holden by the corporation, are competent witnesses in any action in which the corporation is a party: 1 Gfreenl. on Ev. § 333. Judgment affirmed.