Bucklin v. Davidson

Opinion by Mr. Chief Justice Sterrett, In form as well as substance, the averments contained in plaintiff’s statement of claim present a good cause of action. On the motion to take off the nonsuit the only question was whether his evidence ivas sufficient to have justified the court in submitting the case to the jury. In his opinion discharging the rule to show cause the learned president of the common pleas concedes that plaintiff’s evidence was sufficient to require submission to the jury of the question whether a contract, such as that averred in the statement, was made, but he says it did not establish any such breach of said contract and resultant damages as would have entitled plaintiff to recover; and hence he refused to take off the nonsuit. An examination of the testimony has satisfied us that the learned judge was clearly right as to the sufficiency of the evidence to carry the case to the jury on the question of the alleged contract; but we think he erred in holding “that it did not establish any such breach and resultant damages as entitled plaintiff to recover.” We have repeatedly held that, in testing the correctness of a refusal to take off a judgment of nonsuit, the plaintiff is entitled to the benefit of every fact and inference of fact which might have been found by the jury or drawn by them from the testimony before them; and it is immaterial that the evidence tending to sustain plaintiff’s claim may be very slight, provided it amounts to more than a mere scintilla. If there is any evidence which alone would justify an inference of the disputed facts on which his right to recover depends, it must, according to the well settled rule, be submitted to the jury. It is their exclusive province to pass upon the credibility of the witnesses, weigh the evidence and ascertain the facts: Lerch v. Bard, 153 Pa. 573, and authorities there cited; to which may be added, Miller v. Bealer, 100 Pa. 583, and Fisher v. Railway Co., 131 Pa. 292. In view of the fact that the case will go back for retrial, it is not our purpose, nor would it be proper, to specially comment on the force and effect of the testimony further than to indicate that it is sufficient to have carried the case to the jury on the question of breach of the contract, consequent damages, etc., and suggest some of the material facts which it tends to prove. [367] The evidence shows that the parol contract, for sale of the timber, included the use of defendant’s sawmill, then on the premises, with which to manufacture' the timber into lumber. The consideration to be paid for the timber, as it was manufactured and marketed by defendant, was a certain sum per thousand feet board measure, for each kind of wood,—hemlock, oak, cherry, etc.,—and fifty cents per thousand feet of lumber, manufactured from the timber, for the use of the mill. The different provisions of the agreement are so connected with and mutually dependent on each other as to constitute an entire contract. It also shows that, so far as the defendant was concerned, the contract was executed by giving plaintiff possession, as far as practicable, of the mill and timber; but it also tends to show that, through the agency of his brother Samuel, defendant shortly afterwards obtained possession of the mill, by a sort of artifice or trick, and refused to surrender the possession and control of the same again to plaintiff, and otherwise interfered with his prosecution of the work under the contract. That—if found to be the fact—would be a breach of the contract, and plaintiff would be entitled to recover at least nominal damages. It is true, he appears to have continued for some time to stock the mill operated by defendant’s brother and receive lumber from the same; but all that may be satisfactorily accounted for on the theory that it was the best he could do, in the circumstances. There was some evidence that, relying on having possession and control of the mill, he had undertaken to fill orders for lumber, etc. Assuming that plaintiff did exercise considerable forbearance and submit for a time to defendant’s unreasonable refusal to surrender possession of the mill, that indulgence should not deprive him of his right of action for breach of the contract. There is some evidence of considerable advance in the price of the timber very soon after the contract was made. It is not impossible that this may have had something to do with defendant’s conduct in withholding possession qf the mill, and otherwise interfering with plaintiff’s prosecution of the work under the contract. These, and other matters that might be suggested, may not be improper subjects of inquiry, by the jury, in determining whether there was a breach of the contract or not, and, if so, to what extent plaintiff was damaged. The [368] burden of proof is of course on him, but we think tho*evidence adduced was sufficient to carry the case to the jury, not only on the question of contract, but also as to breach thereof and consequent damages. The evidence on the subject of damages is very slight, but it amounts to more than a scintilla. Without further comment, it is sufficient to say, we think there was error in refusing to take off the judgment of nonsuit. Judgment reversed and a procedendo awarded.