White v. Blanchard & Rodgers

30 A. 204, 164 Pa. 345, 1894 Pa. LEXIS 1077

• Court: Supreme Court of Pennsylvania
• Decided: October 15, 1894
• Docket: Appeal, No. 110
• Status: Published

Opinion

Per Curiam,

The first and second specifications, relate to the charge of the court. The former quotes the instruction complained of thus: “The defendants do not appear, and have offered no evidence. If you believe the'testimony of the plaintiff, he is entitled to recover the amount stated, $42.90. If you are satisfied that is the truth, we will take your verdict for that amount.” The latter charges error in not instructing the jury that “ Under the evidence and .pleadings,” plaintiff could not recover. ■. *

In narrative form, the substance of plaintiff’s testimony is : that he worked for defendants,—haule.d bark for them in August, 1893, to the amount of $48.75; that they were entitled to a credit for about $5.85, as nearly as he could tell, for store goods delivered by them; and that “‘the balance remains due and unpaid.” In the absence of other testimony, this was quite sufficient to justify the instruction complained of. There is nothing in the pleadings to prevent a recovery for the balance indicated by plaintiff’s uncontradicted testimony, provided the jury were satisfied as to its truthfulness; and, as to that, their verdict is conclusive. This disposes of the first two specifications, and leaves nothing..on which to base the third and last assignment of error.

Defendants, in their history of the case, allege that, at time of trial, the plaintiff was “ one of the associate judges on the bench.” This is not only emphatically denied by the averment in the counter statement, that plaintiff “never was an associate judge; he is but a young man, only passed 21 years of age, and a laborer,” but it is unsupported by anjffhing in the record. If plaintiff’s positive denial be true, the least that defendants should have done would have been to withdraw their erroneous allegation. The impropriety of injecting irrelevant and especially untruthful matter into any case must be manifest to every one.

In examining the paper-books, with reference to the'above mentioned allegation and denial, we became satisfied that, on the merits, the defendants had no case, and therefore concluded to affirm the judgment as though the -testimony and charge of the court were properly on the record. If we had determined otherwise, the result would have been substantially the same. because there does not appear to have been any exception taken either to the admission of the testimony or charge of the court, and hence there is nothing, properly on the record, upon which to base the assignments of error.

Judgment affirmed.