Volk v. Beatty

Opinion by Rice, P. J., As shown by the first assignment of error, the learned trial judge gave two reasons for refusing to affirm the defendant’s third point: first, because he had fully covered the point in his general charge; second, because the point assumed certain facts which were for the jury. The rule is that a party is entitled to a clear and distinct statement of the law in answer to every point properly drawn that is material and applicable to the .case, and warranted by the facts and'the evidence, “if not fully covered in the general charge:” Schomacker Mfg. Co. v. Yankee Club, 30 Pa. Superior Ct. 162. A point which assumes facts in dispute under the evidence is not properly drawn and may be refused for that reason alone. But it was not strictly accurate to construe the point under consideration as assuming any of the facts. It was so worded as to leave the determination of the questions of fact to the jury, and to require them to apply to the case the rule of law relative to -fhe rescission of such contracts only in the event of their determination of the questions of fact in a certain way. But we cannot, agree with appellant’s counsel that the assignment of the second reason for refusing the point was in itself prejudicial to the defendant. The effect of the answer as a whole was to refer the jury to the general charge for the legal instructions that should guide them in the event of their finding or not finding certain facts alleged by the defendant. These were fair, adequate and quite as favorable to the defendant as he had a right to ask. The learned judge said to the jury: “It is entirely competent for one seeking the erection of a building to place in the contract a time limit, and it may be made as of the essence of the contract; and if in such case the contractor failed to do the work within the time fixed, unless delayed by the owner or his progress is impeded by what is known as an act of God, he may be deprived of everything. ... If this house was so constructed as to warrant the conclusion from the evidence that the work was not a substantial compliance with the contract, then it is the same as if he had not complied with it in any de [632] gree. Therefore, if you find from the weight of the evidence that the plaintiff failed to substantially comply with the terms of this contract you would find for the defendant. . . . Now, did the plaintiff substantially comply with his contract? If there is evidence here which satisfies the jury from its weight that this plaintiff did not comply with his contract in any particular, that the material used was defective, and if he had been permitted to go on and complete the work it would not be such a house as the contract called for, then he would not be entitled to anything.” These and other instructions of the same tenor, taken in connection with the unqualified affirmance of the defendant’s first, second and fourth points, covered all the questions raised in the third point unless it be that as to the time limit. Upon this subject the learned judge said: “It is alleged by the defendant there was a time limit, not set out in the written contract, but provided for by contemporaneous parol agreement that this work was to be completed before cold weather set in in the fall of 1904. The plaintiff says there was no such agreement. The defendant, who says there was, called a witness named Lepley who testified that he had been one time in the meat market of the defendant in Boswell, some time in September, 1904, and Mr. Volk, the plaintiff, came in and exhibited some plans and specifications, saying he was to erect a house for the defendant; and the witness made inquiry whether or not it was contemplated to erect the building that fall and Mr. Volk answered that the building would be completed that fall ready to go into before cold weather. Mrs. Beatty on the witness stand testified to the same conversation. When she was asked to fix the time of the occurrence she was not able to do so, but when asked whether or not this conversation was before the work had commenced upon the house, she answered that it was after the work had commenced. Now, if that was all there was in the nature of a contract on that point, then the time element in this contract is immaterial.” This was a fair statement of the substance of the testimony of Lepley and Mrs. Beatty, and a more favorable view as to the time the alleged promise or representation was made than the testimony of the defendant himself required, as will be seen by the follow [633] ing extract: “Q. Please state what your parol agreement was as to the time the house was to be finished? A. The house was to be finished before cold weather. He had plenty of time, he said, and could finish the house before cold weather. And the reason of my hurry was that I was living in a stable. By Mr. Ruppel: We object to this. A. And Mr. Volk promised me, in the presence of people, he would have it done long before cold weather — he would put on ten good men. And I kept my part going, that it wouldn't delay him one hour.” While it was alleged in the affidavit of defense and in the notice of special matter that by a parol contemporaneous agreement between the parties the house was to be completed before cold weather set in, and to be ready for occupancy at that time, it was not alleged, and no evidence was given to show, that this was omitted from the written agreement by fraud, accident or mistake. Moreover, the evidence as to the time of making the alleged promise is indefinite and wholly insufficient, under the well-established rule relating to the subject, to sustain a finding that there was a contemporaneous oral agreement which induced the execution of the writing. It follows that there was no error in refusing the point. The second assignment of error is not sustained by an exception, and besides that, as shown by the opinion of the learned judge discharging the rule for new trial, no abuse of discretion or harmful error was committed in overruling the motion for continuance. The third assignment of error is to the discharge of the rule for new trial. The depositions submitted on the argument of the rule are not printed in the appellant's paper-book. Assuming as we may in their absence that the facts are as stated in the opinion discharging the rule, the discretion vested in the trial court was properly exercised. The assignments of error are overruled and the judgment is affirmed.