#### Freiler *v.*Kear.

The rule that a married woman, with her husband’s consent, may maintain an action against a firm of which her husband is a member, upon a lease by that firm of her separate real estate, is not modified by the fact that, in the examination of the husband in the court below, he was treated as a party adverse to his wife.

An offer to prove a former recovery in an entire contract was rejected in this case, there being no plea of former recovery.

That the judgment is against one of two joint defendants in this case, if properly before the court, is no cause for reversal.

Feb. 19, 1890.

Appeal, No. 119, Jan. T., 1890, to C. P. Schuylkill Co., to review judgment on verdict in action on the case by Daniel Freiler and Barbara Freiler, his wife, in right of the wife, against F. G. Kear and Daniel Freiler, trading as F. G. Kear & Co., at Jan. T., 1885, No. 100. McCollum, J., absent.

The declaration contained three special counts and the common counts for money had and received, etc. The special counts allege, in substance, that the defendant became a tenant to the plaintiff from year to year, at an annual rent of $800, upon the terms, among other things, that the defendant should, during his tenancy, keep the premises in good or tenantable repair, yet he did not, etc. Both parties were summoned, but the only plea filed was as follows: “F. G. Kear, one of the defendants, pleads non assumpsit and payment, payment with leave, etc.”

On the trial, the following facts appeared, before Pershing, P. J.:

Barbara Freiler, the plaintiff, wife of Daniel Freiler, one of the members of the firm defendant, on Aug. 1, 1879, leased a brewery owned by her, to F. G. Freiler & Co., at a yearly rental of $800 a year, “ and keep the premises in as good repair as they got it.” Evidence was offered to show that, while in possession as tenants, they did great injury to the buildings.

[Defendants offered two mortgages of Daniel Freiler and wife to F. G. Kear for the purpose of showing that in 1879 one of the mortgages was due, and that the other was due in January, 1880.

Objected to by plaintiff as being irrelevant, incompetent and immaterial, and having nothing to do with the issue here. Offer overruled. Bill sealed.] [1] It is stated, in the paper-book of appellee, that no exception was taken to this ruling and no bill sealed.

[Defendants proposed to offer the suits, upon the mortgages, Nos. 409 and 410, Sept. T., 1880, of F. G. Kear *v.*Daniel Freiler and wife, to be followed up by proof that they then set off in that suit the rent of this brewery as against the recovery upon the mortgages ; thereby having taken that course, they cannot sever this contract now and bring another action upon it for the damages to this brewery. That the contract was entire, and, having set off a part of it against the rent, they cannot now recover upon the contract. Also, we propose to follow it up by proof that two suits were after-wards brought, one against F. G. Kear alone, for the wagon bed, that was included in this lease, and the other for hay included in this *748lease or agreement, and to show by the jurymen that the damages to the same, and of some of the things included in this suit, were before that jury and considered by them.

Objected to: 1st, that the records of the prior suits between the same parties are inadmissible evidence for the purpose offered, unless there is a plea of former recovery. 2d. That the offer does not propose to show that the plaintiff here in any of the suits mentioned recovered for the same subject-matter covered by the declaration in this case. 3d. That under rule 78 of the rules of our court, where defendant has pleaded the general issue, he must give notice, at least fifteen days before trial, of the special matter on which he will rely; that no such special notice has been given here and the evidence offered is not admissible under the general issue. 4th. The evidence offered is incompetent, irrelevant and immaterial.

The Court: We do not think that the fact that they set off rent as against the mortgage would have any bearing upon this controversy, and the fact that they set off rent I do not think would admit the evidence they propose in this action.

Defendants proposed to show, further, that the contract of leasing of this brewery for the rent of $600 or *$800*per year is an entire and indivisible contract, and, in the former suits now offered in evidence in 409 and 410, Sept. Term, 1880, the plaintiffs in this case gave evidence of rent due upon this contract, and of the conversion and destroying of a lot of barrels, which were part of the property leased, and that their claim for barrels as a set-off and payment on the mortgages was considered by the jury, and plaintiffs allowed credit for above rent and personal property included within that lease. This for the purpose of showing that the plaintiffs have already adopted a remedy, and been allowed damages in those suits for a portion of the property leased under this entire contract, and are now estopped and precluded from again recovering in this action for damages under that entire contract. We make the same offer in Nos. 280 and 282, March Term, 1885, of the entire record. Each of them having Daniel Freiler and Barbara Freiler, his wife, for plaintiffs, in right of the wife, and No. 280 having F. G. Kear for defendant, and 282 having F. G. Kear and Daniel Freiler, trading in the firm name of F. G. Kear & Co., for defendants; that in the one suit there was a recovery had for injury and damage done by the removal of side guides from the sled or wagon, which was included within this lease, and in the other there was a suit for damages and conversion of a portion of the property included in the lease, and that the pleadings in 409 and 410 were such as to allow a set-off, or an allowance by way of payment under the pleadings, and that, under the pleadings in Nos. 280 and 282, there could have been a recovery for the claim in this suit. Now, this, for the purpose of estopping the plaintiff from recovering.

Objected to as being incompetent, irrelevant and immaterial, *749and don’t propose to show that damages to the real estate were sought to be recovered in any of the several actions spoken of.

The Court: Offers to admit evidence to show that any matter .claimed in this suit had been heard in the former suits and disposed of. And we therefore overrule the offer, and seal a bill.] [2]

[Barbara Freiler, plaintiff, called her husband, one of the defendants, to testify, as on cross-examination, as an adverse party to the plaintiff. Objected to as an adverse party. The court thought they had a right to call him. The plaintiffs asked for cross-examination under the Act of Assembly. The defendants objected to the right to call him under the Act. Bill sealed for defendants and witness admitted.] [3]

[Defendants proposed to prove that Daniel Freiler went to ’Squire Kuehn’s after the arrangement was made at the house, for the purpose of drawing up an agreement in reference to the working and leasing óf this brewery, and stated to him the terms of the arrangement between himself, Kear and his wife, for the purpose of showing that he made different statements in reference to the terms of this leasing at that time. This for the purpose of laying ground for the contradiction of the witness, and for the purpose of refreshing his memory, and calling his attention to that transaction, so as to recall the terms of the leasing to his mind. The fact that he has already testified that he is not assisting Kear in defending this suit against them both, and as assisting his wife in taking witnesses and masons to the brewery, and assisting in getting up the evidence for the plaintiff in this case, as the representative of the wife, as appeared by his own testimony.

Plaintiffs objected: 1st. Because the witness is claimed by the plaintiff upon cross-examination. 2nd. He being a defendant, any statements he made in the absence of Mrs. Freiler, the plaintiff, would be evidence only against him, and his partner Kear, and cannot affect her. 3d. The defendant cannot refresh the witness’s memory by inadmissible evidence. 4th. It is irrelevant, immaterial and incompetent.

The Court: The objection is well taken. The witness was a party of the defence, and is adverse to the plaintiff in this action, and was called upon cross-examination by the plaintiff. You may show by other evidence that his statements here are not correct, but you cannot produce evidence simply to impeach his credibility, and I am compelled to overrule the offer and seal a bill.] [4]

[Plaintiffs proposed to show by a witness the condition he found the property in in question at the time he visited the place and made his examination, and to be followed by proof showing what condition it was in when it was demised to Kear & Co., and to show, further, what, in his opinion and judgment, would the damages done to this brewery amount to, and what it would be worth to put it in proper repair and in the condition in which it was delivered to F. G. Kear & Co., these defendants.

*750The defendants objected to the admission of the evidence of an examination made of the brewery at a distance of three, four or five years after the expiration of the lease, and the question in that issue relates to and must depend upon the condition of the brewery at the time Kear left it. Objection overruled and exception.] [5]

The jury returned the following verdict: “ We, the undersigned jurors, find damages for the amount of $1272.73 in favor of plaintiff.”

The prothonotary’s docket contained the following entries:

“ The jury do say they find in favor of the plaintiff and against the defendant for $1272.73.

“ Oct. 17, 1887. Reasons for new trial filed.

“Nov. 11, 1889. Rule discharged and judgment directed to be entered on the verdict. Defendant excepts. Bill sealed.” [6]

*The assignments of error*specified the action of the court, 1, 2, in excluding defendants' offers of evidence, quoting the offers as above; 3, the admission of Daniel Freiler as a witness, quoting the offer, as above, but not the evidence; 4, in rejecting defendants’ offer, quoting the offer, as above; 5, in receiving plaintiff’s offer, quoting the offer, as above, but not the evidence; and, 6, in entering judgment on the verdict, quoting the entries as to verdict and judgment, as above, but not as to the rule for new trial.

*David A. Jones,*with him *Seth W. Grier,*for appellant.

Where the consideration in a contract is single, the contract is entire : Rugg & Bryan *v.*Moore, 110 Pa. 236; Lucesco Oil Co. *v.*Brewer, 66 Pa. 351; Clay Commercial Telephone Co. *v.*Root, 2 Cent. 340. . A contract of insurance upon real and personal property for a gross premium, is entire and not severable: Gottsman *v.*Pa. Ins. Co., 56 Pa. 210. A contract of insurance on several distinct buildings for a single or gross premium, is entire: Fire Association of Phila. *v.*Williamson, 26 Pa. 196; Kelly *v.*Ins. Co., 5 Cent. 484.

Where the cause of action, in which a judgment is rendered, is entire, and therefore insusceptible of severance or apportionment, the estoppel will extend to the whole, and it cannot be shown that any part was withheld from the decision of the court or jury: Hess *v.*Heebie, 4 S. & R. 246; Alcott *v.*Hugus, 105 Pa. 350; Fish *v.*Foley, 6 Hill, 54; Duffy *v.*Lytle, 5 Watts, 130; Farrington *v.*Payne, 15 Johns. 432. This rule is one which admits of no exception, and cannot be relaxed, even on the clearest proof that no evidence was given as to part of the demand in controversy: Miller *v.*Manice, 6 Hill, 121; Ramsey *v.*Hundon, 1 McLean, 450.

When the cause of action is the same, a former judgment in a suit between the same párties, though an inadequate one, is a bar to a second recovery: Pinney *v.*Barnes, 17 Con. 420. So, an action brought for part of an entire and indivisible demand, and recovery therein, will bar a subsequent suit for the residue of the same demand : Rendavogle *v.*Cocks, 19 Wend. To permit a party *751to recover in a second action what was included in, and might have been recovered in the first, would be against the policy of the law, and unjust, because it would harass a defendant and expose him to double costs: Brenner *v.*Moyer, 98 Pa. 274; Hess *v.*Heebie, supra; Buck *v.*Wilson, 113 Pa. 423 ; Simes *v.*Zane, 24 Pa. 242 ; Logan *v.*Caffrey, 30 Pa. 196.

Plaintiffs could have set off their entire claim for unliquidated damages arising upon the contract in this suit, in the former suits. Damages arising from a breach of a sealed contract between them, entirely disconnected with the note in suit, may be proved by way of set-off: Halfpenny *v.*Bell, 82 Pa. 128. See also, Hunt *v.*Gilmore, 59 Pa. 450, and cases cited by the court therein.

A former recovery can be given in evidence in bar under the general issue: Buck *v.*Wilson, 113 Pa. 423; Brenner, Trucks & Co. *v.*Moyer, 98 Pa. 274; Logan *v.*Caffrey, 30 Pa. 196.

The husband was not a competent witness to testify as if upon cross-examination. This question of his admissibility and competency is not a personal privilege to be waived. The Act of Assembly expressly provides that -he shall not be a competent witness against his wife, and the court should not have permitted him to be called and cross-examined by her. The wife might have called the husband as a witness in chief to testify for her, but then she could not have shielded her husband, and, by objections and rulings of the court, denied Kear,'his co-defendant, all the right to impeach or contradict her husband’s testimony, as was done in the trial.

Both the verdict and judgment are entered against one of two joint defendants, where none other than a joint liability ever existed or has been contended for. This was error: Coughenour *v.*Suhre, 71 Pa. 464; Swanzey *v.*Parker, 50 Pa. 441 ; Locke *v.*Daugherty, 43 Pa. 88; Schoneman *v.*Fegly, 7 Pa. 433; Corbet *v.*Evans, 25 Pa. 311; Rowan *v.*Rowan, 29 Pa. 181.

The entry of judgment against either one of the defendants alone in this case would work manifest injustice, because he would be deprived of his right to subrogation to insure contribution from his co-partner.

Verdicts and judgments have been frequently held to be void for uncertainty. In Miller *v.*Hower, 2 Rawle, 53, it was held that a verdict which does not find for a specific sum is void, and this defect cannot be remedied by a writ of inquiry nor by the prOthonotary ascertaining the amount. To like effect are Whitesides *v.*Russell, 8 W. & S. 47, and Schmertz *v.*Shreeve, 62 Pa. 457. In Stewart *v.*Speer, 5 Watts, 79, a verdict in ejectment for the plaintiff for 150 acres, part of the land claimed in the writ, and not guilty as to the residue, without designating the part found, was held had for uncertainty. For like reasons the verdict in Martin *v.*Martin, 17 S. & R. 431, was held bad. Such verdicts cannot be cured by the court: Smith *v.*Jenks, 10 S. & R. 153; nor by the jury after *752it is recorded; and such change is the subject of a writ of error: Walters *v.*Junkins, 16 S. & R. 414; Bruckw. Mausbury, 102 Pa. 35.

If a verdict and judgment be void and bad by reason of uncertainty as to their subject matter, then they are equally void for uncertainty as to the parties against whom entered.

The court below held the action and the proceedings therein to be adverse throughout by the wife against her husband, by the admission and rejection of evidence. If the action was adverse, as represented by the wife below and believed by the court below, then this court should not be asked to say that the husband gave his consent to the maintenance of the action, or suffered a default, and allowed a judgment to go against him.

*George J. Wadlinger,*with him *John A. Nash,*for appellee.—

Not a single assignment of error conforms with Rule xxiv. This court will not consider such assignments of error: Hawes *v.*O’Reilly, 126 Pa. 440; Battles *v.*Sliney, 126 Pa. 460; Sticker *v.*Overpeck, 127 Pa. 452.

The 1st assignment of error is not in proper form, and is vague and indefinite. The materiality of the evidence does not appear, nor is it shown that any injury was suffered by the defendant.

The 2d assignment of error fails to set out the records offered in evidence. Besides, they were inadmissible, because there had been no plea of former recovery. Before this special defence could be given under the general issue, it was necessary, under the rules of the court below, for the defendants to have given notice, before the trial, of the special matter. But defendants were not injured by this ruling,- as the court offered “ to admit evidence to show that any matter claimed in this suit had been heard in the former suits.”

The 3d and 5th assignments of error fail to quote in full the substance of the exception or the evidence admitted. No Act of Assembly or decision is cited to show that the 3d assignment was error, and we fail to discern from the discussion of this, as well as the 4th assignment, why they are made. No error appears in the 4th and 5th assignments, and there is nothing contained in the argument of the appellant that discloses any error in the action of the court below.

The 6th assignment of error is not in proper form, as the rule does not appear in the assignment. A true test of the correctness of an assignment of error, we take it, lies in this, that, standing alone, it will disclose, to the court above, the entire action, on the part of the court below, and reveal the error complained of, if such error exists. This assignment is also in conflict with Rule xxii, which provides, that “ each error relied on must be specified particularly, and by itself.

The authorities cited by appellant refer to such verdicts as are uncertain and not responsive to the issue, and are not capable of being enforced. It is the sheerest nonsense to argue, or attempt to *753argue, that this verdict is uncertain as to the party against whom it is entered. Even if that were true, the right to amend such verdict and enter a proper judgment thereon exists, and can be exercised by the supreme court after the case reaches it on error or appeal: Haas *v.*Evans, 5 W. & S. 252. Great power is given to courts in the matter of verdicts to juries, both in the right to mould them when informal, or to amend them so as to conform to that actually rendered by the jury: Ivcns’s Ap., 33 Pa. 237; Keen *v.*Plopkins, 48 Pa. 445 ; Haycock *v.*Greup, 57 Pa. 438; Byrne *v.*Grossman, 65 Pa. 310.

March 3, 1890.

A nolle prosequi could have been entered as to Freiler and a judgment recovered against Kear: Beidman *v.*Vanderslice, 2 Rawle, 334; Chiswell *v.*Ingham, 1 Wilson, 89; Com. *v.*Nesbit, 2 Pa. 16.

After a verdict against more than one, charged on a joint contract, a nolle prosequi may be entered as to one, and judgment entered against the others on the verdict, under the Acts of 1846 and 1858, relating to amendments: Ganzer *v.*Fricke, 57 Pa. 316.

In conclusion, we beg leave to refer to the opinion of this court in this same case, reported in 126 Pa. 474.

Per Curiam,

This case has been here before: Freiler *v.*Kear, 126 Pa. 470. There is nothing in its present aspect that requires further discussion.

Judgment affirmed.