Moore v. Robison

Opinion by Beavek, J., The appellee invokes the application of our rule No. XV as to the first, second, fourth and fifth specifications of error. The rule is: “When the error assigned is to the charge of the court, or to answers to points, or to findings of fact or law, the part of the charge or the points and answers-or findings referred to must be quoted totidem verbis in the assignment.” The first and second assignments relate to points to which the answers are not quoted [74] in the assignments. The fourth and fifth assignments relate to separate points, in which the answers are given but the points are not quoted. The objection is, therefore, well taken and the rule must be applied. The sixth assignment is “That the court below erred in refusing defendant’s motion for a new trial.” This is also excepted to on the ground that a new trial is not, under ordinary circumstances, the subject of an appeal. It was said by our Brother Henderson, in a very late case — Belber Trunk & Bag Co. v. Silberblatt, 44 Pa. Superior Ct. 32: “It is clearly established that nothing but a manifest abuse of discretion will justify the appellate court in disturbing the conclusion of the trial judge on a rule for a new trial. The power is exceptional in character and is only to be exercised in cases where it is manifest that injustice has been done: Moyer v. Phillips, 40 Pa. Superior Ct. 1; Schenkel v. Traction Co., 194 Pa. 182; Neff v. R. R. Co., 202 Pa. 371.” This leaves for consideration the third assignment which contains an exception to the charge of the court below. The assignment raises a question of fact rather than one of law. The portion of the charge excepted to is as follows: “Now, gentlemen, was there a contract? Did the defendant offer and the plaintiff accept $1,400 in full settlement and compromise of all claims which the plaintiff had, or claimed to have, by reason of work done or materials furnished in the removal of the old house, its repair or alteration, if it was repaired or altered, and the erection of the new buildings and the changes and alterations, if any were made? If such a contract for compromise was entered into, then it was binding on the parties, and the plaintiff cannot recover in this case; but if you find that the parties did not settle and compromise the matters in dispute to which we have referred, and that the plaintiff did not accept the $1,400 as a full settlement, then your verdict should be for the plaintiff for such sum or sums as, under the evidence and the instructions we have given you, you find he is entitled to [75] recover on any or all of the items of his claim, together with interest thereon from April 2, 1904.” The claim of the plaintiff, as set forth in his statement, consisted of several sets of items: first, those relating to a contract for the removal of- a frame building and the erection of two brick buildings upon Ward street; second, sundry items of charge based upon alterations upon these buildings after the contract was made; third, repairs to an old building, independent of'the three on Ward street, on Meyran avenue; fourth, McCallister’s bill for plumbing, and fifth, bringing water supply from Meyran Avenue. It is alleged by the defendant that, when this bill was presented, he declined to pay it but offered a check for $1,400 in full payment of the bill and that he did not need, therefore, to pay anything on account thereof, because the plaintiff accepted the check. The check reads as follows: “No. 136. Pittsbubg, Pa., April 2, 1904. “OAKLAND SAVINGS AND TKUST COMPANY “Pay to the order of J. F. Moore, Fourteen Hundred Dollars, $1400.00 “ Dollars “ $1400.00. “William Robison. “ In full settlement of contracts for two brick houses and one frame, situate on Ward Sk Indorsed: J. F. Moore.” It is claimed by the plaintiff that the addition following the signature of the defendant was not on the check when he received it and that he had no knowledge of such an addition made thereto. He specially declined to comply with the request of the defendant, according to his testimony, that he sign a receipt-in full for the bill. He gave credit for the amount of the check and claimed the balance of the bill. As we understand the position of the defendant, he does not claim an .accord and satisfaction but a compromise proposed .by the defendant and accepted [76] by the plaintiff. The check is given as evidence of that compromise and of the acceptance by the plaintiff of the check in full of his demands. Assuming that the plaintiff is in error as to the fact that the addition to the check was made before he indorsed it, it must be taken for just what it is worth and it only claims that it is “in full settlement of contracts for two brick houses and one frame, situate on Ward St.” As we understand the plaintiff, he admits that the amount of the contracts for the houses was fully paid but that the alterations made in consequence of the defendant’s request subsequently to the making of the contracts and the items for the Meyran avenue house and the bringing of the water supply therefrom and the payment of the McCallister bill for plumbing were all in addition thereto and are not claimed to be included in the addition to the check. The court, however, left it to the jury to say whether or not, according to the claim of the defendant, the check was in full of all claims, and this appears in the part of the charge which is assigned for error, and, if any error appears therein, it would seem rather to be in the interest of the defendant than that of the plaintiff. We have considered many times the question of the character of a receipt in full. As was said in Benseman v. Ins. Co., 13 Pa. Superior Ct. 363, by .our president judge, speaking for the court: “A receipt in full is not conclusive, but is open to explanation (Sargeant v. Ins. Co., 189 Pa. 341, and cases cited): yet if there be no explanatory evidence, it has a defined legal meaning.” Millert v. Augustinian College, 36 Pa. Superior Ct. 511, is to the same effect, and other cases are therein cited, so that the broad question was submitted to the jury whether or not the indorsement on the check was a receipt in full of all demands, which in itself it does not claim to be. The question was clearly, therefore, one for the jury,— first, was the addition to the check made prior to its acceptance by the plaintiff? And, even if it were, did it include more than the added statement sets forth? These [77] questions were very fully submitted to the jury in detail, and their verdict is conclusive upon the subject. We are quite satisfied, therefore, not only of the fairness of the submission of the questions of fact to the jury, but also that the sixth assignment, relating to the refusal of the court to grant a new trial, is without foundation. The assignments of error are all overruled. Judgment affirmed.