Shaffer v. Bahr

Citations

• 57 Pa. Super. 48
• 1914 Pa. Super. LEXIS 148

Syllabus

<p>Pleading — Variance—Trial on merits — Practice, C. P.</p> <p>1. A judgment for plaintiff will not be reversed by the appellate court on the ground of a variance between the plaintiff’s statement and the evidence, where it appears that the defendant permitted the evidence to go in without objection, did not move to strike it out, presented no point on the subject, asked for no binding instructions, and filed no assignment of error raising the question.</p> <p>2. In ah action of assumpsit where the plaintiff claimed to recover a sum stated which he averred was a loan for one year, and the defendant denied that any money was loaned to him, evidence of the plaintiff at the trial that the loan was on demand, is not a variance prejudicial to the defendant.</p> <p>3. The question of a variance is not for the jury to consider, but for the court to determine as a matter of law.</p> <p>Evidence — Loan or gift — Making evidence for one’s self.</p> <p>4. In an action of assumpsit where the plaintiff seeks to recover money loaned, and the defendant avers that the money was a gift to his wife, it is not proper to permit the defendant to testify that he borrowed a portion of the money from his wife a few days after it was given to her, and gave a judgment note for the money.</p> <p>5. In the trial of such a case it is proper for the court to refuse to charge as a matter of law that the lending of money without taking a note is contrary to the common experience of men in business dealings.</p> <p>Practice, C. P. — Trial—Misconduct of furors — Discretion of court.</p> <p>6. The appellate court will not review the discretion of the trial court in refusing a new trial because of alleged misconduct of the jurors, where the evidence tends to support the findings of the judge, and it is not shown that there was any manifest abuse of discretion.</p>