Roland v. Eckman

Opinion by Rice, P. J., Under the agreement averred in the statement of claim and testified to on the trial, for the breach of which the action was -brought, it was incumbent on the plaintiff to prove that at one [77] time he had title to certain personal property which one Tomlinson had taken away from the leased premises. It was such property only that the defendant agreed to restore. This being so, the plaintiff could not be confined in his proof to the bare assertion that the articles belonged or had. belonged to him. Perhaps he went more into detail than was necessary, but we cannot say that it was wholly irrelevant to show how and under what circumstances they came into the possession of Tomlinson, and upon’what the plaintiff’s claim to have them returned was based. For according to the latter’s testimony, all these facts were communicated to the defendant in the negotiations which resulted in the alleged agreement. The evidence, therefore, had some bearing on one of the questions in issue, and, moreover, was explanatory of a somewhat complicated transaction. As was said in Breneman v. Furniss, 90 Pa. 186, the case was one in which a knowledge of the res gestee might very materially aid the jury in reaching a correct conclusion. When in a court of errors a judgment is asked to be reversed on the ground merely of the admission of irrelevant testimony, it ought to appear clearly that such evidence tended to draw the minds of the jurors from the point in issue, to excite prejudice or to mislead them: 1 Greenl. on Ev. sec. 52; Rauch v. Miller, 68 Pa. 234. We do not think the evidence embraced in the first seven and the tenth assignments of error could have had that effect. These assignments are overruled. The objection to the admission in evidence of the indorsement on the lease was not well taken. The plaintiff had testified that the interpolation referred to in the objection was made before the paper was signed. Mr. Place, one of the subscribing witnesses, whilst not remembering as to the interlineation, did not testify that it was not made when the paper was executed. His testimony that the paper as interlined expressed the agreement of the parties was corroborative of the plaintiff’s testimony and was admissible for that purpose. The eighth and ninth assignments are overruled. The admission of evidence not strictly in rebuttal is largely in the discretion of the court and is not reversible error except in extreme cases when discretion has been abused and the party objecting has been injured. This is all that need be said regarding the eleventh and twelfth assignments. Both are overruled. [78] The objection that this was an attempt to charge the defend,ant upon a promise to answer for the debt or default of another, which not being in writing'was void, appears not to have been made in the court below either in stating the objections to the .admission of evidence or by a request for instructions. The charge was not excepted to, therefore the defendant is not in a position to ask us to review it. We remark, however, that we •do not think the case is within the statute of frauds. The •defendant’s undertaking, so far as it is directly involved in this case, was not to indemnify the plaintiff for the tort of Tomlin-•son, nor to guarantee the performance of an undertaking or the ■discharge of a legal obligation of the latter, but to deliver certain chattels. It was an original undertaking, entered into to .subserve his own purpose, and whether or not performance would have liad the incidental effect of discharging Tomlinson from liability to the plaintiff is immaterial. That was not the leading purpose, and, therefore, the promise was not within the •statute. See Weber v. Bishop, ante, p. 51, and cases there-cited. We find no error in the record which would justify reversal. Judgment affirmed.