Merriman v. McManus

Mr. Justice Gordon delivered the opinion of the court, January 22d 1883. Two exceptions take up all the material questions in this case. The first is as to the admission of the notes of testimony containing the evidence of McManus, the plaintiff below, taken on a former trial between these same parties. McManus was first offered to testify in his own behalf, but it was objected that he was incompetent by reason of the death of one of the parties defendant. Thereupon the plaintiff’s attorney acquiesced in this objection and withdrew the offer, and then, under the rule as stated in Pratt v. Patterson, 31 P. F. S. 114, the notes above-mentioned were offered and admitted. The principal [106] •objection made to this ruling, in the court below, and on which the bill was sealed, was that the witness him self was present in court, and that he not being competent, neither were the notes of his former testimony. If this were all that could be urged against the admission of this'evidence, it is obvious that the case above cited renders the objection of no account. But it is now, for the first time, urged, that under the act of May 28th 1878, McManus was in fact competent, hence, the admission of the notes of testimony was erroneous. Though we may admit the rectitude of this proposition, yet for that reason we are not prepared to reverse. The error, if such it was, was induced by the action of the defendant’s counsel. They objected to the admission of the plaintiff, on the ground of his incompetency ; that was acquiesced in by the plaintiff’s counsel and the witness withdrawn. Then came the offer of the notes, and the exception to them, inter alia, was, not the competency of the plaintiff under the Act of 1878, but his incompetency. Conceding, however, this alleged incompetency,.the court, as we have seen, could not but overrule the exception. Such being the case, the defendants must abide by the result of their own acts. The plaintiff was entitled to the admission of this evidence in one form or the other, and if they by their own act induced the erroneous ■ruling, they cannot be permitted to relieve themselves of the effect of their own fault by-an appeal to this tribunal. We cannot agree to aid and abet in the springing of any such trap upon the court'below. The second question involves the statute of frauds. Was there evidence sufficient to submit to the jury, that the defendants entered into a contract, of an original character, and not merely'as sureties of Richardson, to pay the defendant, or see that he was paid, for the work which he might thereafter do on the two sets of houses mentioned in the contracts? We think there was such evidence. The contracts between Richardson and McManus were, in effect, at an end, for without páyment McManus refused, as he had _ a right to do, to go on with the work. Richardson, if the testimony is to be believed, was hopelessly insolvent, and the only persons who were interested in the finishing -of the property were the defendants. Here, then, was a strong reason, to start with, why they should become ■the actors. Then we have the testimony of Francisco Richardson, that when he was no longer able to comply with his contract, “ Mr. Merriman came in and made arrangements with Mr. McManus to go on and finish it and he should have his money, and also his house, when his contract was finished.” He says further, “after the defendants came in and agreed.to furnish the money to finish operations, McManus never called on me for money. I notified Mr. Merriman when his work was [107] done, and that certain amounts of money were due him, and for what account and purpose the money was wanted, and the defendants furnished their cheeks and I paid McManus accordingly.” This is a substantial confirmation of the plaintiffs evidence, and it is further corroborated by D. 0. Richardson, and Mary Richardson. As to the Sydenham street houses, the plaintiff testified that Mundy, the agent of thé defendants, promised him, on their behalf, that if he would go on and finish up the work, his money would be sent down to him every week, and this testimony is supported by that of D. C. Richardson, as follows : “The money which I said the Merrimans advanced, in my answer to the fourth direct interrogatory, a part of.it was that which D. 11. Merriman, in the spring of 1877 at my house, No. 1716 North Fifteenth street, Philadelphia, promised McManus he would send through Francisco, my son, if he, McManus, would finish up the work on the twenty-one houses on Fifteenth street, south of Montgomery avenue. The balance of the money was that which Mr. Mundy, on behalf of the defendants, in my presence, at the City Hotel, Philadelphia, promised McManus he would send each week if he would finish up the work on the Sydenham street houses.” I give these partial extracts from the evidence to show, that there was that in this case which could not properly be withheld from the jury. It is true there are some discrepancies and contradictions in and of the testimony thus produced by the plaintiff, but, in my opinion, there is not enough of either to materially affect it, and, indeed, taking it as a whole, I am inclined to think that there was enough to show, and that conclusively, that in consequence of the insolvency of Richardson, the original contracts were abandoned, and that the only inducement for the re-undertaking of the work by the plaintiff -was the promise of the defendants to pay him therefor. This case is certainly as strong as that of Jefferson county v. Slagle, 16 P. F. S. 202. Slagle refused to deliver to Dickey, the contractor, the brick which were necessary for the new court-house, but he was induced to continue the delivery thereof, under the terms and conditions of the contract with Dickey, on the promise by the county commissioners that they would pay him, or “ stand good for the pay.” In both these cases the defendants agreed to pay for what they got, and only for what they got, and that because they could get what they wanted on no other terms. Moreover, Richardson, like Dickey, was insolvent, hence, it seems to me, that to advance the idea of guaranteeing the solvency of a confessedly insolvent man, is little less than absurd. The judgment is affirmed.