Nicholson v. Kennedy

Supreme Court of Pennsylvania October 17, 1898

Nicholson v. Kennedy, 188 Pa. 90 (Pa. 1898)

41 A. 381; 1898 Pa. LEXIS 579

Fell, Green, McCollum, Mitchell, Sterrett

Opinion of the Court

Opinion by

Mr. Justice Fell,

When the assignments of error which relate to the exclusion of testimony are considered in connection with the state of the pleadings when the offers were made no error is disclosed. The plaintiff sued four defendants to recover a balance claimed to be due for drilling an oil well. One of the defendants, Bradley, was the owner of an oil lease, and he induced the other three defendants to join with him in drilling a well. No oil was found, and each of the others paid one fourth of the cost. This action was to recover the fourth which should have *94been paid by Bradley, and the real question was whether the-defendants were jointly liable. The original statement of the cause of action was on a written contract, by the terms of which a joint liability was imposed, but it appeared at the first trial that this contract had been signed by Bradley only, and that without authority he had signed the names of the other defendants to it. The plaintiff then procured a continuance, and before the second trial filed an amended statement alleging that the work had been done under a verbal contract, but the proofs failed to support this averment and showed that the only contract he had was the rvritten one, and that the work had been done under it. Upon objection being made to the admission of evidence to establish a verbal contract, after the plaintiff had testified that the contract under which the work had been done was in writing, he again amended his statement aftd set out that the verbal contract had been reduced to writing and signed by Bradley for himself and by him without authority for the other defendants, and that without knowledge of Bradley’s want of authority he had done the work under the written and verbal contracts, and that subsequently Kennedy the only defendant served, had ratified the verbal contract. There was a further vague statement that the defendants had ratified the contract, without specifying which contract. With the pleadings in this condition the case went on, and every offer of testimony which tended to show either prior authorization or subsequent ratification of either contract was admitted. The plaintiff succeeded in showing that each defendant had assumed a liability for one fourth of the cost, but failed to show a joint liability.

The judgment is affirmed.

Reference

Full Case Name: W. H. Nicholson, Jr. v. W. C. Kennedy, impleaded with J. A. Twitchell, H. M. Ernst and S. H. Bradley
Status: Published
Syllabus: Contract — Appeal—Evidence—Joint liability. An action of assumpsit was brought against four defendants, only one of whom was served, to recover the one fourth of the cost of drilling an oil well, which should have been paid by one of the defendants not served. The original statement averred a written agreement executed by all the defendants, but it appearing at the trial that this agreement had been signed by one of the parties without authority from the others, plaintiff amended his statement so as to aver a verbal agreement, and subsequently further amended it so as to aver that the verbal agreement had been reduced to writing; and signed by one of the parties without authority from the others, and that the defendant served had ratified it after the work was done. The evidence tended to show that each defendant had assumed a liability for one fourth, and that each one had paid his share except the one who had executed the contract. Held, that as there was no sufficient evidence of joint liability under either the verbal or written contract it was not error for the court to give binding instructions in favor of the defendant.