Warne v. Johnston

Citations

• 48 Pa. Super. 98
• 1911 Pa. Super. LEXIS 344

Syllabus

<p>Evidence — Affidavit of defense — Contract.</p> <p>1. On the -trial of an action on a contract, the plaintiff may offer in evidence a portion of the affidavit of defense for the purpose of showing the defendant’s admission as to what was the terms of the contract, but this does not estop the plaintiff from showing by his own testimony that the contract was not, in all particulars, as admitted or alleged by the defendant.</p> <p>Principal and agent — Beal estate broker — Commissions—New trial.</p> <p>2. When a real estate broker is duly authorized to sell property by private sale and has commenced negotiations with a purchaser, the owner cannot while such negotiation is pending take it into his own hands and complete it either at or below the price first mentioned, and then refuse to pay the commission. If the evidence is conflicting as to whether the broker was the procuring cause' of the sale, the case is for the jury.</p> <p>3. Although the plaintiff by his testimony may have made out a prima facie case which he is entitled to have submitted to the jury, the case is none the less for the jury, if the defendant introduces testimony which, if believed by the jury, would warrant them in finding against the plaintiff.</p> <p>4. The refusal of a new trial is a matter within the sound discretion of the court below, and is not a sufficient ground of reversible error unless for gross abuse.</p> <p>Trial — Charge—Irrelevant remarks.</p> <p>5. Remarks by the trial judge in the course of his charge alleged to be irrelevant are not grounds for reversal, where it appears that they could not have misled the jury, and that they were calculated and intended simply to offset an irrelevant suggestion that had been made in the presence of the jury by the defendant’s counsel.</p>