Dickey v. Schreider

Tilghman C. J.

(After stating the case.) He that demurs to parol evidence, engages in an uphill business. For, every fact is taken pro confesso, which the jury might, with the least degree of propriety, have inferred from his evidence. The Court is not nicely to weigh the evidence, and decide' according to the turn of the balance. If that were the law, the trial by jury would be destroyed. It never was intended, that by a demurrer, the Court should become triers of fact. Their office remains unchanged. Ad questiones facti, non respondent judices. This principle is well established; for the Court has had occasion to consider the subject maturely, in several cases which have occurred on demurrers to evidence. The question then will be, whether, from the evidence in this case, the jury might not have inferred the consent of Dickey, to the proceedings in the ejectment brought by Fry. I cannot say, that they might not have inferred it; for Mr.Riddle may be considered himself as acting both for Putman and Dickey, although, according to the articles of agreement, Putman bore the whole expense of the ejectment. What was done at the trial, was by no means injurious to Dickey and Ward. We must presume, that there was a strong disposition in Put-man, to withstand the claim of Fry, and that the compromise was not made, until Fry¡ had given evidence sufficient, beyond doubt, to establish his title. It is true, that Fry could not have recovered the whole land, but having shewn title in his deceased father, I cannot think that it was incumbent on Putman, according to the spirit of his agreement with Dickey and Ward, to withhold the possession from the heirs of George Fry, the father, till each of them had-brought a separate ejectment. This fighting for the ground, inch by inch, was not the intention of the parties. If Putman was under the necessity of supporting five or six ejectments, it would have cost him more than the land was worth ; and all to no purpose. I rather think, that according to the fair construction of the articles of agreement, it was sufficient, if it was proved on one trial, that Putman could not hold the land by law, (these are the words of the articles.) It does not appear, that any concession was made by Putman, in derogation of the title derived from Dickey and Ward, or in favour of George Fry’s title j or that there was any mention of a compromise, untill Fry had established his title, to the satisfaction of James. Riddle. Considering, then, that every thing was transacted fairly, and with the best intention, and that Dickey so far ratified the -proceedings as to offer to pay his half of the money, I am of opinion, that the jury might have inferred, that the land was lost after a trial at law, within the meaning of the articles of agreement. Whether the plaintiffs in this suit were entitled to recover to the full amount of the whole purchase money paid to Dickey and Ward, is not material; the quantum of damages is unconnected with the demurrer to the evidence. If the plaintiffs were entitled to any damages, they must have judgment on the demurrer, so that if even if Patinan was wrong in surrendering the whole land, yet he would be entitled to judgment, because Fry had shewn title in himself to one-sixth part, and consequently the plaintiffs should recover pro tanto.

The plaintiff in error, makes another exception. He says, • that William Ward never joined issue, and therefore the suit was discontinued in the Court of Common Pleas. This exception comes with rather an i'll grace from the mouth of Mr. Dickey, who signed an agreement for the entry of an amicable action, in which he and Ward were defendants; the agreement was, that the defendants should plead instanter, and the cause be put down for trial at the next Court. The plaintiffs filed a declaration against both defendants, the short entry on the docket is, the defendant pleads covenants performed ; replication, that they have not performed the covenants and issue. Now taking this altogether, there clearly appears a clerical error; the replication being, they have not performed, &c. I should conclude, that the clerk ought to have entered the defendants plead, instead of the defendant pleads. We know with what inaccuracy these short entries are made, and must construe them with great latitude to effect justice ; otherwise few records would stand. From a view of the whole record, it appears to me, that both defendants appeared and pleaded. I am therefore of opinion, that the judgment should be affirmed.

Gibson J. concurred.

Duncan J. concuri-ed.

J udgment affirmed.