D'Homergue v. Morgan

3 Whart. 26, 1838 Pa. LEXIS 156

• Court: Supreme Court of Pennsylvania
• Decided: January 2, 1838
• Status: Published

Opinion

Hibson, C. J.

delivered the opinion of the Court—

The plaintiff ought perhaps to have declared specially; but granting that assumpsit might be maintained on the agent’s promise of employment, why was not every thing said by the agent in the plaintiff’s presence, of prospects opened or pursuits abandoned, pertinent to the question of damages ? In that view, at least, Captain O’Brien’s deposition seems to have been admissible in the first instance. It certainly became so to rebut the exorbitance of the plaintiff’s terms, considered in reference to his supposed condition; and the court, thinking that certain parts before excluded, had been rendered admissible by evidence from the other side, invited a repetition of the plaintiff’s offer, which was declined. Then how was he injured ? He was remitted to the circumstances in which he stood at the outset; and the fault committed in the first instance, seems to have been repaired. But it is supposed that perfect reparation admitted of nothing less than a reception of'the deposition entire, while the remarks of the court indicated an admissibility of particular parts, and these without specification. Still we cannot say that a second attempt would not have proved entirely successful. Further discussion, which is due to every court when it is- requested, might have led to an introduction of every part, or else a precise expression of opinion as to particulars, which would have enabled us to treat the judgment fairly, instead of reversing it for doctrine which was not held. But it is far from clear, that every particle of the deposition was unobjectionable; and, under the views that had been opened by the defence, to have given the benefit even of an argument on the separate admissibility of the parts, would have been an act of justice. The sum of the matter is, that a party is not deemed to have been injured by an abortive offer of competent evidence, which has not finally been excluded; especially a party who declined a revision which would have placed him in circumstances as advantageous, as if the evidence were proposed, and objections made to it, for the first time. On the remaining bills of exceptions, it is sufficient to remark, that parliamentary predication of a fact, can give it no sanction that may supersede the ordinary appeal to the conscience; and that the-unofficial assertions of a foreign minister, derive no title to judicial regard from his character. On the same footing stands the medal of the Eranklin Institute. As a certificate of opinion in regard to the plaintiff’s fitness and skill, of which that institution had not been made the arbiter — it was well rejected.

Judgment affirmed.

Cited by Counsel, 6 Wharton, 330.