#### Oberholtzer *v.*Heist.

In an action of assumpsit for commissions on sale of horse, the evidence was to the effect that the plaintiff entrusted to the defendant four horses to sell at auction. On the morning of the sale, one of the horses ran away and broke up the wagon to which he was hitched. The defendant offered to prove damages done to the sale by runaway horse, as set-off. This evidence was rejected, but no exception taken. The court charged that the jury could allow defendant no credit for any loss of that sale, that there was no evidence from which they could estimate any damages to the defendant on that account, and that it was their duty to exclude it entirely from their consideration. *Held,*to be no reason for a reversal.

In the above case, the defendant called witnesses to testify that the reputation of the plaintiffs for veracity was bad. The court charged : “A man’s reputation for truth and veracity is something that is precious to him. It may be his only recourse in a suit at law to sustain himself, and he ought not to be broken down unless the jury are convinced that his reputation is so bad that they could not safely rest their verdict upon his testimony.” The defendant complained that the effect of the charge was calculated to build up the character of the witness attacked, and to destroy that of the attacking party. *Held,*to be no cause for reversal.

That the declaration concludes with a claim of damages in excess of the jurisdiction of a justice of the peace, on appeal, is no cause for reversal where the claim and the amount recovered are within such jurisdiction.

Feb. 4, 1889.

Error, No. 38, July T., 1888, to C. P. Montgomery Co., to review a judgment on a verdict for plaintiff, on an appeal from a justice of the peace, by Allen S. Heist against Joseph PI. Oberholtzer, at Oct. T., 1886, No. 159. Williams, J., absent.

Two declarations were filed; the first claimed $200 for money had and received, to the damage of plaintiff $500; the second $200 for goods sold and delivered, goods bargained and sold, work done and materials furnished, money lent, money had and received, money found due, and for interest, to the damage of the plaintiff of $1,000. The pleas were non-assumpsit, payment with leave, etc.

The plaintiff’s claim, as testified to by himself, was for commissions on the sale of a horse.

The defendant claimed a set-off, not raised by this record. He also claimed a set-off on account of an alleged injury to the sale by reason of the runaway of another horse owned by plaintiff. Defendant’s counsel made the following offer, when defendant was on the stand: “ I want to show by this witness the fact that this horse ran off that day, injured the sale, and threw distrust upon the sale.” Objected to, objection sustained, and exception.

Mr. Corson: “ I offer to prove by this witness, that one of the horses given by the plaintiff to the defendant to sell, was a runaway horse, and that that fact was concealed from the defendant by the plaintiff, and at the trial of the horse on the day of sale this horse ran off, or tried to run away; that he broke the wagon, and broke the harness, and that he threw the driver, Rodman Apple, out and broke his leg; and that thereby the defendant’s sale was injured to the extent of $100 or $150.”

The Court: “ All the offer except the latter part beginning *397‘That thereby defendant’s sale was injured to the extent of $100 or $150,’ is received.”

“ Q. Did he tell you before the sale that he was a runaway horse ? A. He never told me anything like that. Q. Was that an injury to your sale, without stating the amount? A. Certainly it was.”

The court charged the jury, inter alia, as follows, by Weand, J.:

[“ If you believe the testimony of the plaintiff in this case, he is entitled to your verdict for the amount of $116.70, with interest as claimed.” [1]

[“ It appears that while these horses were being exercised by Mr. Apple, who was in the employ of Mr. Oberholtzer, you will remember, they ran away, and they broke a wagon and harness. That wagon and harness belonged to Mr. Osborne, the landlord of the hotel, and if Mr. Heist was liable to pay that damage at all he was liable to pay it to Mr. Osborne and not to Mr. Oberholtzer, and therefore in this case the question does not arise as to whether this was a runaway' horse, or as to whether the plaintiff knew he was a runaway horse, or as to whether Mr. Oberholtzer knew it was a runaway horse. Because, no matter whether he was or not, if the damage was caused by that horse it was a damage to Mr. Osborne, who alone had a right to present that bill to Mr. Heist. Therefore that part of the case is entirely out of the question. [2]

[ “ The defendant, however, has argued to you strenuously, as he has argued to the court, that, by reason of this runaway on the morning of the sale, that sale was damaged to a certain extent; that this accident prevented people from coming there, and prevented them from bidding at the sale, and thereby the defendant suffered a consequential damage. It is for the court to lay down the law to the jury, and for the jury to take into consideration only the evidence. If I make a mistake as to the law in this case, neither party can be hurt, because they have the right to a motion for a new trial, and if it shall be decided against them there, they have their appeal to the supreme court, and if my law is wrong, it will be corrected. But if you undertake to overrule the court, and to decide the law for yourselves, there will be no correction, and, whichever party you decide against, if you decide against the court on the law, he will be injured beyond any remedy; and, therefore, it is your duty, and it is just to both parties, that, in deciding this case, you shall take the law from the court. The law, as laid down to you by the court, is that you can allow this defendant no credit for any loss of that sale. It has not been shown you here, — because the court would not allow it to be shown, — that anybody was prevented from attending that sale; or that any of these horses did not bring their real value; nor is there a particle of testimony here that any horse was unsold because of anybody being prevented from being there, or being deterred from bidding. Therefore, there is not a particle of testimony before you by which you could, even if you wanted *398to, estimate any damages to the defendant on that account, and your duty is to exclude it entirely from your consideration.” ] [3]

[ “ The defendant contends, further, that the plaintiff in this case is entirely unsupported in his testimony, and that he is not to be believed because his reputation for truth and veracity is bad. A man’s reputation for truth and veracity is something that is precious to him. It may be his only recourse in a suit at law to sustain himself, and he ought not to be broken down unless the jury are convinced that his reputation is so bad as that they could not safely rest their verdict upon his testimony. You will inquire who have been called in this case to'prove that he is unworthy of belief. Are they people who know him well, who know the community in which he lives, and who are able probably to judge as to what his general reputation in the neighborhood is ? Not what their own individual opinion is, because that does not go to make up a man’s character.”] W

Verdict and judgment for plaintiff for $126.78.

*The assignments of error*specified, 1-4, the portions of the charge included within brackets, quoting them; and, 5, the action of the court in not charging that the weight of the evidence was with the defendant.

*George N. Corson,*for plaintiff in error.

The court was in error in charging that the jury could not allow defendant credit for a loss at the sale. The plaintiff was guilty of an obvious wrong in imposing a runaway horse on the defendant, and the damages could have been estimated by the jury. Brewing Co. *v.*McCann, 118 Pa. 315 ; Holler *v.*Weiner, 15 Pa. 242; Leeds Amherst, 20 Beav. 239; Pa. R. R. «/..Dale, 76 Pa. 49; Cobb *v.*Bennett, 75 Pa. 326; Scott *v.*Hunter, 46 Pa. 192; 1 Sedgwick, 93.

The charge of the court on the subject of character was erroneous. Heine *v.*Com., 91 Pa. 148.

If the cause of action exceed the jurisdiction of the justice, the judgment will be arrested on appeal, though the defendant there plead to the merits and go to trial. Moore *v.*Wait, 1 Binn. 219; Laird *v.*McConachy, 3 S. & R. 290; Wright *v.*Guy, 10 S. & R. 227; Holden *v.*Wiggins, 3 P. & W. 469; Collins *v.*Collins, 37 Pa. 387.

*Walter S. Jennings,*for defendant in error.

There was no evidence of any damage to the sale before the j ury ; and, to the action of the court excluding such testimony on the trial, no exception was taken by the plaintiff in error. The action of the court in excluding the testimony which formed the substance of the bill of exceptions is not assigned as error, nor should it be; for that offer was clearly inadmissible.

But independent of these objections, the ruling of the court was right. Even assuming that the horse was a runaway, and that Heist *399knew it, the damages claimed to be introduced were too remote and uncertain. None of the cases cited in plaintiff in error’s paper-book support his contention, or in any way impugn the ruling of the court below.

Feb. 18, 1889.

Per Curiam,

Judgment affirmed.