Parkinson v. Parkinson

Opinion by

Henderson, J.,

In the offer contained in the first assignment the plaintiff’s counsel proposed to show on cross-examination of the defendant that he had admitted an indebtedness to the plaintiff of $400 in a conversation with reference to a settlement of the money transactions between them, this conversation having taken place after the delivery of the note out of which this action arises. The offer was rejected on the ground that the evidence was not admissible on cross-examination. The question at issue was whether at the time the defendant gave the note to the plaintiff there was a collateral agreement that the plaintiff should not be required to pay the note if for any reason he did not continue to live in the house with his wife, the borrowed money having been used by the defendant in the repair of the house. The pleadings did not admit evidence of the general state of accounts between the plaintiff and defendant. A party is not permitted to present his defense in the cross-examination of the opposite party by the introduction of matter not *284brought out in the examination in chief: Malone v. Dougherty, et al., 79 Pa. 46; Denniston v. Philadelphia Co., 161 Pa. 41.

The second assignment contains an offer to prove by the plaintiff in rebuttal that there was an attempt at a settlement of accounts between her and her husband and that in the course of their conversation on this subject the defendant admitted an indebtedness to her of $400 or more. The offer proposed to show how the respective accounts, one against the other, were made up at that time and that anything the plaintiff had against her husband and anything he had against her were taken into consideration. It was conceded that no conclusion was arrived at, no compromise effected and no settlement entered into. The learned trial judge applied the law correctly in rejecting this offer because the alleged admission had reference to a general state of accounts between the parties made in an attempt to negotiate a settlement. That such declarations are not admissible is a proposition established by our authorities: Slocum v. Perkins, 3 S. & R. 295; Fisher v. Life Association, 188 Pa. 1; Pirhalla v. Duquesne Boro., 47 Pa. Superior Ct. 330.

The reference in that part of the charge set forth in the third assignment did the defendant no harm. The testimony is uncontradicted that the defendant’s eyesight was poor, and the reference to that fact as a reason given by the defendant for wishing to have the house repaired had no bearing on the question of the making of the contract on which the defendant stood, but was explanatory merely.

The plaintiff admits that the defendant left the house permanently and that he did so by her direction. We do not find any error therefore in the answer to the point set forth in the fourth assignment. • The house belonged to the plaintiff, it was in a state of dilapidation and it was agreed between the husband and wife that the property be repaired. This was done according to the defend*285ant’s evidence largely at his own expense, but lacking the ready money he proposed to borrow from his wife $500 of the amount necessary to complete the repairs, which cost about $1,400 according to the evidence. That the money so borrowed was paid out on bills for the work done on the house is not denied. It was not an unreasonable arrangement that if by reason of a sale of the property by the wife, or the existence of subsequent conditions the husband could not longer remain on the premises, he should not be required to reimburse his wife for the amount of money covered by the note as she had received the consideration in the improvement of her property. He was subsequently turned out of the premises, she obtained a divorce and he was compelled to seek a home elsewhere. The jury found on competent evidence that the agreement was made as alleged, and the conditions having arisen under which the defendant was entitled to be released from his obligation the court properly instructed the jury that if they found the facts as set forth in the point the verdict should be for the defendant. It follows that the answer to the plaintiff’s point asking for binding instructions covered by the fifth assignment was free from error. There was an issue of fact for the jury.

The judgment is affirmed.