Pratt v. Patterson

1. An action was commenced in the District Court; on the trial both parties testified; a verdict was rendered, which was set aside. The plaintiff discontinued the action and commenced another in the Supreme Court .against the defendant for the same cause of action ; the defendant afterwards died, and his executors were substituted. Held, that the plaintiff was not a competent witness, but the notes of his testimony taken on the former trial might be read. 2. The Act of April 15th 1869 is an enlarging not a restraining statute ; it makes no evidence or witness incompetent that was competent before. 3. Notes of testimony are substantially a deposition, and evidence competent under the Act of 1869 is admissible as depositions under the Act of March 28th 1814. 4. Statutes providing for the perpetuation of evidence are in furtherance of justice and a due administration of law, and should receive a liberal construction. 5. On the trial an agent of a defendant testified that he had received a letter from plaintiff on their business ; that he had searched for it but could not find it; no notice had been given to defendant to produce the letter. Held that a copy was not evidence. 6. Evans v. Reed, 28 P. F. Smith 415, followed.

Certificate from Nisi Prius : Of July Term 1870, No. 205. This was an action of assumpsit brought July 11th 1870, by Dundas T. Pratt, againt George Patterson. After the case was at issue the death of defendant was suggested, and Lydia Patterson and Frederick Patterson, his executors, were substituted. The action was for the recovery of commissions for the sale of real estate by the plaintiff for the decedent. The case was tried March 12th 1874, before Mr. Justice Williams at Nisi Pi'ius. A suit had been previously brought between the same parties for the same cause of action in the District Court of Philadelphia. On the trial of that suit both parties testified; a verdict was rendered on that trial which was set aside; the suit was then discontinued and this action instituted. On the trial of this action the plaintiff was offered as a witness. He was objected to by the defendants as incompetent, was rejected by t'he court and a bill of exceptions sealed. Plaintiff then offered in evidence the notes of his testimony taken on that trial; this offer was objected to by the defendants, rejected by the court and a bill of exceptions sealed. W. W. Harding testified, that wishing to purchase the property, he ascertained from plaintiff that he could effect a sale; plaintiff told him the price was $140,000 and that it was useless to try to get it for less; he offered the plaintiff $135,000 for it; he said if witness would give $140,000 he could get it; witness agreed to give that sum, the name of one his clerks to he used in the agreement, which was drawn for $140,000 and signed by the clerk. Witness did not wish to be known as the purchaser as he was desirous of purchasing an adjoining property ; he was able and prepared to carry out the contract for $140,000. Another witness testified that the plaintiff urged the decedent to take $135,000 ; that he refused and plaintiff then produced the agreement to sell for $140,000 ; decedent declined to sign the agreement, but said when the parties were ready to pay the money he would bring the deeds and papers ; decedent said that plaintiff was to receive $1400 commission. Henry C. Townsend, Esq., had been the counsel of the decedent, but witness did not know whether he had been consulted in this matter; decedent made no objection to the price $140,000, nor to the amount to be secured on the property; nothing was said about Harding being the purchaser. II. C. Townsend, Esq., testified that decedent had consulted him frequently about this property; he had prepared a paper containing brief terms of agreement for sale of the property; he had advised decedent to impose those terms on- all purchasers in any contract he might make. Witness had received a letter from Mr. Miller, counsel for the plaintiff, which he could not find, of which he thought a paper shown him was a copy; he had received also a letter to him from plaintiff, of which one shown him was a copy; he had searched for it but could not find it; he said also that a letter shown him was one written by himself to Mr. Miller; he could not recollect whether it had been shown to decedent. Mr. Miller’s letter was to him as counsel for decedent for whom he was then acting; witness told decedent the substance of his reply which decedent thought was right. The plaintiff offered in evidence the copy of his letter to Mr. ■Townsend; it was objected to by defendants because no notice had been given to produce the original, rejected by the court and a bill of exceptions sealed. The plaintiff offered to show by — Alexander that $500 were tendered to decedent, and what Patterson said about this transaction when he made the tender, and that Mr. Patterson treated the witness roughly and turned him away, saying that Mr. Pratt had lied to him. The defendants objected to the offer, it was rejected by the court •a bill of exceptions sealed. The “ brief of terms of agreement” and the agreement offered to decedent were' given in evidence; they contain nothing important to the case. There was- other oral evidence also. The court directed a nonsuit and afterwards refused a motion to to take it off. The plaintiff took a writ of error and assigned for error, 1. Refusing to permit the plaintiff to testify. 2. Excluding the notes of the testimony of the plaintiff in a former action between the same parties in the lifetime of the said George Patterson, which suit was about the same subject-matter, and in which said Patterson was also examined. 3. Refusing in evidence a copy of a letter from plaintiff toH. C. Townsend, who said he had searched for the original and could not find it, for the reason that no notice to produce the original of said letter had been given to the defendants. 4. Overruling the offer to show by Alexander that $500 were tendered to decedent, and what Patterson-said about the transaction when he made the tender, and that Patterson treated witness roughly, and turned away, saying that Pratt had lied to him. 5. 6. Entering judgment of nonsuit against the plaintiff and refusing to take it off.