Fulton v. Lancaster County

29 A. 763, 162 Pa. 294, 1894 Pa. LEXIS 980

• Court: Supreme Court of Pennsylvania
• Decided: July 11, 1894
• Docket: Appeal, No. 350
• Status: Published

Opinion

Opinion by

Mr. Justice Green,

As this case is now presented, and as it was submitted by the learned court below, it exhibits but a single question of pure fact. The plaintiff alleges, and positively testifies, that on June 13, 1883, and several months after his relation as county solicitor had ceased, he made a new contract with the county commissioners for the rendition of his services in the prosecution of the claim of the defendant for the collection of overpaid taxes. He describes in his testimony what took place at that time. He said: “I stated to the board of county commissioners, — there was a full board in session, Myers, Summy and Hildebrand, Myers was president of the board, — I stated to them that my efforts before the board of revenue commissioners of the commonwealth, and before the board of public accounts had not been successful; I stated that I had endeavored to have a law passed authorizing suits against the commonwealth by counties to recover this money, and endeavored to have another bill passed authorizing the board of public accounts to give credit settlements in cases like ours, but I had failed. I then told them that I desired to take in associate counsel; I told them that, if they would agree to it, I would associate Mr. Henselwith me in the prosecution of the claim against the commonwealth. They were favorable to the proposition and asked ' upon what terms the services of Mr. Hensel could be procured. I said to them : ‘You paj>- me 25 per cent of the amount collected from the commonwealth and I will compensate Mr. Hensel; this is to be in full for all costs and expenses as well as all fees ; this if we recovered, and we would make no charge if nothing was recovered.’ Q. What, if anything, did they or any of them say to you in response to that proposition? A. They agreed to do it and authorized me to go ahead and engage Mr. Hensel, and that I should have 25 per cent of the amount collected, and I should compensate Mr. Hensel and pay all costs and expenses.”

It seems that the principal services performed by the plaintiff were rendered after this time, and that they were successful. The learned judge of the court below very carefully instructed the jury that there could be no recovery upon the contract made on June 28, 1882, because of the plaintiff’s relation as county solicitor at that time. And he also most cautiously and clearly instructed them that there could be no recovery except upon a contract made after January, 1883, and only for services rendered in pursuance of such contract. He called the attention of the jury to the conflict of testimony upon this important subject and correctly instructed them as to their duties in such a state of the evidence. It is impossible for us to say that there was any error in all this. The testimony of the plaintiff was direct, positive, explicit, minute and emphatic. The court could not possiMy withdraw it from the jury, but was bound to submit it to them. This was done in a perfectly fail' and impartial manner of which no complaint has been, or could be, made. The jury has found for the plaintiff and has thereby declared their belief in his testimony, as they had a perfect right to do. They are the sole judges of the credibility of witnesses as we have said very many times, and it is not in our power to defeat their verdict upon any theory that they should have believed differently. The very elaborate and exhaustive opinion of the learned court below, on the rules for a new trial and to enter judgment for defendant non obstante veredicto, is a perfect vindication of the action of the court on the trial and is a satisfactory exposition of the case on its merits of law and fact. We discover no error in any of the assignments and must therefore affirm the judgment.

Judgment affirmed.