The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1897-09-25

Judge d. w Searle, of Montrose, yes
terday handed down three opinions or
rules for new trials in cases in which
he specially presided in this county.
The cases were A. c. Tunstall against
j. f. Baum eister and others, Mrs. Ellen
O'Donnel against Charles du Pont
Breck and Edward Thayre against the
Scranton Traction company. In the
first case it was the plaintiff who
sought new trial and in the last two
the defendants were the movers. In
all three the rule for a new trial was
denied.
The case of Tunstall against Bau-
meister and others. it will be remem-
bered, grew out of dissolution of the
Sons of America Publishing company.
The defendants, some dozen or so
prominent members of the p. o. S. of
| a., who composed the publishing COM
pany claimed that they settled their
| printing bill at the Providence Regis
ter plant by giving to ]. U. Hopewell
the Sons of America, together with its
| outstanding assets. Hopewell denied
| that there was such an understanding
| and further averred that he was not
| the owner of the Providence Register,
| tall the real owner. Tunstalls effort
to secure pay for the Sons of America
printing bill occasioned the suit
AT the first trial of the case, before
| Judge Archibald, the plaintiff won. a
new trial was granted and Joseph
| O'Brien was added to the legal array
on the defendants side The defend
| ants won and then the plaintiff made
fnr ftin
Searle refuses to grant it, giving his
reasons as follows:
HIS OPINION NOT CHANGED.
w. C. Tunstall VS.. j. F. Bauneister,
ct al.
Rule to show cause why new trial
| should not be granted.
The reasons assigned relate principally
to the rejection of evidence offered.
After an examination of the case, I
| am still of the opinion that the evidence
| offered and rejected was not material
to the determination of the issues in the
case and that the rulings upon the Of
| fers were correct.
The other reasons assigned are that
| there was error in refusing to affirm
plaintiffs points Nos. and 5, without
qualification, and refusal to affirm plain
| tff's sixth point.
and the explanation attacted was prop
er to prevent mistake. The plaintiffs
| sixth point was not applicable to the
| real issue in the case, and therefore the
refusal to pass upon it was not error.
Rule discharged.
d. w. Searle, p. j., Thirty-fourth dist.
In refusing a new trial in the O'Don-
| nell-Breck case Judge Searle submits
| lengthy and elaborate opinion, going
into an interesting discussion of the
circumstances warranting the inter-
ference Of the trial Judge In the sub
mission of a case to the jury.
| He first sketches history of the case,
| which briefly is as follows: Mrs
O'Donnell wanted to secure a piece of
| property on Washington avenue and
| spoke to Mr.. Breck about getting ii for
| her He informed her some time later
that ii could be purchased for SIC 900
and she gave him $500 instructing him
| to secure it. Later she learned that the
property was on the market for $l4,-
| 500 and she demanded the return of her
$500. Mr. Breck refused to give ii back
saying 1t had been given him to apply
as part payment on the lot, which his
firm, Breck & Reynolds, controlled.
| She said she gave the $500 to him, with
the understanding that he was to act
as her attorney. He insisted he was
| simply acting as a real estate agent
and she persisted that he had been en-
gagged as attorney and after lengthy
argument Mr.. Breck gave her back
$3.50 saying, as she alleges, "If you
don't take that you will get nothing 81
She answered as she accepted it: IL
will take this but will follow you for
the rest" The check for $3.50 was
marked lin full settlement of all mat
ters up to date"
After outlining the cause of action
and the claims of both sides Judge
Searle goes on to say:
RULES DO NOT APPLY.
The learned counsel for defendant urged
upon the hearing Of the rule that in this
case the acceptance by the plaintiff OF
the check for $3.50, containing the state
ment that 1t was in full settlement OF all
matters to date" and the obtaining the
money upon it by her endorsement, was
in effect an agreement in writing which
should require the same rules as to the
modification of 1t as are applied to all
written agreements.
do not think the rules invoked ap.
ply to this transaction; the acceptance of
lHc ChcCh ulluSr tne circumstances teStl-
fled to by the plaintiff did not have the
legal effect of making the check, with
the endorsement upon it, a written agree.
ment of settlement of the matters in dis.
pute.
The weight of evidence would appear tC
be in favor of the claim of the defend.
ant, that the check of $3.50 was given and
received in full settlement of these mat.
ters in dispute. Mr. Breck, the defendant
and his partner, Mr. Reynolds, both testi,
fy that it was and the plaintiff, Mrs
O'Donnell, tcstifes that it was not.
The positive testimony of plaintiff ne.
cessitated the submission of the case tc
the jury.
Upon the trial judge rests the duty OF
determining the law applicable to the case
and instruoting the jury as to the same
as 10 the burden of proof, and the facts
necessary to be found by them in de,
termining their verdict. The law casts
upon the jury the duty of finding the
Facts, under the evidence admitted ano
the instructions of the judge. The entire
twelve jurors are required to agree to tho
findings of fact necessary to render q
verdict, and when the trial Judge has
made no mistakes in his rulings as to the
law applicable to the case, and has ade,
quately instructed the jury as to the
cause and the facts necessary to be
found by them in order to render a yer,
dict, the setting aside of their verdict and
granting new trial, SIMPLY upon the
ground that the jury have found the facts
Inherently from what the trial Judge
would, had he been acting as a Juror
| H.