Crawford & Moyes v. McKinney

Opinion by Mr. Chief Justice Sterrett, If anything has been settled by the uniform ruling of this court on the subject, it is that refusal to order a compulsory nonsuit is not assignable for error: Borough of Easton v. Neff, 102 Pa. 474. This sufficiently disposes of the first specification. The second specification charges error “in refusing defendant’s second and third points” for charge, both of which are recited therein. This offends against rule xxii, in that it embraces “more than one point; ” and is therefore a waiver of both alleged errors. But it may be remarked, in passing, that the learned court was clearly right in refusing to affirm either of said points, and hence appellant is in no worse position by enforcement of the penalty for violation of the rule, than he would have been if each had been “ specified particularly and by itself,” as the rule requires. [608] The third and last specification is more than a manifest violation of rule xxiii, in that it not only fails to quote therein, “ totidem verbis,” either the defendant’s “ fourth point ” or the court’s answer thereto, as required by the rule, but, in lieu thereof, quotes a garbled extract from the second sentence of said answer, which erroneously represents the learned judge as asserting: “ That Mr. McKinney has accepted the building and is using and occupying it, as is stated here, accepting it as a compliance of the plaintiffs in the performance of the contract.” Aside from the fact that it entirely ignores the rule of court, the unfairness, to say the least, of thus wresting, from its proper connection in the middle of a long sentence, a clause of less than three lines, and assigning the same for error, is best shown by reading the point in connection with the entire answer thereto, thus: “ 4th. The contract is the law as between the parties thereto, and if one of them sees fit not to rescind the contract by reason of its violation by the other, then its fulfillment by the latter is an obligation which the law requires him to observe and carry out; failing which, the other party may legally withhold from him the consideration money which otherwise would be due and payable by the law of the contract. Answer: This point is affirmed. If you are satisfied that there was such a substantial compliance with the terms of the contract on the part of the plaintiffs, that Mr. McKinney has accepted the building and is using and occupying it, as is stated here, accepting it as a compliance of the plaintiffs in the performance of the contract, then the next question is what, if any, is to be deducted from the amount of the payment due up to this point and for which suit is brought, for the value or amount of these defects, if any, existing in the work up to that point. The plaintiffs claim that admitting this mullion window was out of place, or not in the position required by the plans and specifications, yet that it was retained there, or allowed to remain there by the permission of Mr. McKinney and his brother W. O. McKinney, who was there as his agent, admittedly, in the supervision of the work. Mr. McKinney denies that he consented to its remaining there. The plaintiffs say it remained there at the permission and assent of Mr. McKinney or his brother. If it was allowed to remain there with their consent, of course he is not to be allowed any damages for its so remaining.” [609] What was thus said by the court in answer to the point was fully warranted by the evidence. But we have quoted the entire answer not so much for the purpose of vindicating its correctness, as a properly qualified affirmance of the point, as to show the impropriety and unfairness of thus distorting the obvious meaning of the sentence, as an entirety. We regret the necessity of thus pointedly calling attention to what appears to be a willful disregard of the rules of court. There is no merit in either of the specifications of error; nor do we discover in the record any error that would justify us in disturbing the judgment. The case depended mainly on questions of fact which were fairly submitted to the jury under proper instructions. Judgment affirmed.