Springer v. Stiver

Opinion by Rice, P. J., This was an action of assumpsit for board and lodging furnished the defendant. An examination of his testimony shows that one of his defenses was, that, at the time he loaned the money to the plaintiff’s husband to enable the latter to buy the farm upon which they lived, it was understood that he was to have a place of abode with them when he was in the neighborhood, and was not to pay for his board. We quote his language : “ It was understood that I was not to pay board, that it was merely a temporary home for me when I was in the neighborhood, stopping place. That is what I wanted it for, or else I would not have put it in.” This allegation being denied by the plaintiff an issue of fact was raised. Inasmuch as the plaintiff’s husband stipulated to pay the usual rate of interest on the loan, it surely was proper for the jury in weighing the conflicting testimony to take into consideration the probability or improbability of the defendant’s allegation, that, in addition, he [188] was to be boarded and lodged free of charge. And if it was a proper matter for the jury’s consideration, it was not improper for the judge in reviewing the evidence and reciting the respective contentions of the parties to call their attention to it. “ It is not error for a trial judge to comment on the testimony of a witness and to call attention to its inherent probability or improbability, provided he does it fairly and leaves the question of his credibility to the jury: ” McNeile v. Cridland, 6 Pa. Superior Ct. 428. The question was, what was the agreement at the time the loan was made ? The fact that the plaintiff’s husband defaulted in the payment of the interest stipulated for in the mortgage could not affect that question. We find no error in the excerpt from the charge which is the subject of the first specification. We have carefully considered the elaborate argument of the defendant’s counsel as to the liability of an undisclosed principal, but do not deem it necessary to discuss the questions suggested in this branch of his argument because we are of opinion ’ that they do not fairly arise in this case. It is sufficient to say, that under no view of the evidence was there such an obligation on the part of the plaintiff to pay the interest on the loan to her husband as would entitle the defendant to plead the same as a set-off to her claim. Under the evidence it was for the jury to determine whether the board and lodging were furnished bj^ the plaintiff or by her husband. The fact that a husband permits his wife to keep boarders and to receive the pay therefor does not impose on her an obligation to pay the interest on a mortgage on the premises given for a loan to her husband. Nor can we see that such an arrangement is a fraud on the mortgagee which he can set up as a defense to an action by the wife against him for board and lodging. The court committed no error in refusing the defendant’s request for binding instructions or in the instructions complained of in the third specification. We cannot intelligently pass on the fourth specification without having before us the paper sent out with the jury. Therefore, this assignment is overruled. We remark, however, that if, as is positively asserted by the plaintiff’s counsel it was nothing more than a statement of the number of meals and lodgings furnished within six years, there was no error in giving it to [189] the jury with such instructions as the court gave in the present instance. See Phillips v. Stroup, 1 Mona. 517, and O’Hara v. Richardson, 46 Pa. 385, 389. The fifth specification is not in accordance with Rule 16, because it omits part of the sentence which explains the part assigned for error. We call attention to our remarks in the recent case of Brinton v. Walker, No. 155, October Term, 1900. Read with the context, which explains it, the excerpt from the charge complained of in this assignment is free from error. The case was for the jury, and the charge, whether viewed in respect of the instructions upon the law, or the review of the evidence and the contentions of the parties, was clear, adequate and impartial. Judgment affirmed.