and that having done so he is entitled to recover the amount necessarily expended in excess of the contract price in completing the contract, the important question is whether the contractor failed to furnish a sufficient number of skilled workmen and proper materials, and whether he prosecuted the work with due diligence.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. 88 1528-1533; Dec. Dig. § 306.*] 2. EVIDENCE (§ 271*)-DECLARATIONS-SELF

SERVING.

On an issue of whether a contractor had prosecuted the work with due diligence, letters from the architect, who, under the contract, was the agent of the owner, to the contractor, complaining of the unsatisfactory and dilatory manner in which the contractor was proceeding, were erroneously admitted, it not appearing that they were actually received or ever replied to by the contractor, since they amounted to nothing more than declarations by the owner in his own behalf.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1068-1104; Dec. Dig. § 271.*] 3. EVIDENCE (§ 271*)-DECLARATIONS-SELFSERVING.

Schedules attached to a statement of claim were erroneously admitted to show the statement of the account of plaintiff against defendant, where the correctness of the items set forth in the schedules was denied, for they amounted to nothing more than self-serving declarations.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1068-1104; Dec. Dig. § 271.*] 4. DAMAGES (§ 122*) - MEASURE - BUILDING CONTRACT-DELAY IN PERFORMANCE-DAM

AGES.

Where a building taken out of the contractor's hands and completed by the owner himself was intended for a residence, and no loss to the owner is shown from the delay in getting it ready for occupancy as such, there is no sound basis for admission of proof of the rental value of the house as one of the elements of damage to the owner.

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 309-319; Dec. Dig. § 122.*] 5. WITNESSES (§ 271*)-CROSS-EXAMINATIONLETTERS.

It is not allowed, on cross-examination, in the statement of a question to a witness, to represent the contents of a letter, and to ask him whether he wrote a letter to any person with such contents, or contents to like effect, without having first shown the letter to the witness and having asked him whether he wrote it, and then offering it in evidence as a part of his cross-examination.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 958-962; Dec. Dig. § 271.*] 6. TRIAL (§ 256*)-DUTY TO REQUEST MORE SPECIFIC INSTRUCTIONS.

Where a party desires more specific instructions than those given, it is his duty to frame points for charge accordingly, and submit them to the court to be given to the jury.

POTTER, J. The defendant in this case entered into a written contract with the plaintiff for the erection of a residence, in accordance with the plans and specifications of an architect, and under the direction and to the satisfaction of the latter. The plaintiff alleged that the defendant failed to prosecute the work with due diligence, and that he was thereby justified under the terms of the contract in taking the work out of defendant's hands and finishing it himself; and that, having done so, he was entitled to recover the amount necessarily expended by him, in excess of the contract price, in completing the contract. The defendant contended that this action upon the part of the plaintiff was high-handed and entirely without justification; and he denied that the plaintiff had any right to take possession of and finish the building, and claimed that upon a reasonable and just settlement a balance was due him upon the contract. Upon the trial the verdict of the jury was in favor of the plaintiff. The defendant has appealed, and his assignments of error relate entirely to the admission of certain matters in evidence, and to portions of the charge.

In construing the contract, the trial judge held that the burden was on the plaintiff to satisfy the jury by the weight of the evidence that the defendant had neglected, or refused, or failed to comply with the contract; and with this view counsel for appellant find no fault. They do complain, however, that the trial judge instructed the jury to give the plaintiff the benefit of all sums expended by him in the completion of the house, without considering the necessity for the outlay and the good faith of the expenditures. Under the theory upon which the case was tried, the important question which lay at the threshold of the inquiry was whether the defendant had failed to furnish a sufficient number of skilled workmen and proper materials for the erection of the house, and whether he had prosecuted the work with due diligence. In attempting to establish the contention of the plaintiff in this respect, there were offered, and, as counsel for defendant claim, erroneously admitted in evidence, two letters from the architect to the defendant, written dur

plaint was made of the unsatisfactory and

Assumpsit by William L. Kann against William B. Bennett. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before MITCHELL, C. J., and FELL, BROWŃ, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

fendant was proceeding. The letters set forth a number of specific grounds of dissatisfaction. Under the contract, the architect was made the agent of the owner, and these letters must therefore be regarded as the letters of the plaintiff, written in his behalf by his agent. They set forth an argumentative

presentation of the plaintiff's contention, and there seems to be nothing in the record to show that they were actually received, or were ever replied to in any manner by the defendant. The letters, therefore, amounted to nothing more than declarations by the plaintiff in his own behalf, and as such they should not have been admitted in evidence. Dempsey v. Dobson, 174 Pa. 122, 34 Atl. 459, 32 L. R. A. 761, 52 Am. St. Rep. 816; Huckestein v. Kelly & Jones Co., 139 Pa. 201, 21 Atl. 78; Fraley v. Bispham, 10 Pa. 320, 51 Am. Dec. 486.

The trial judge also admitted in evidence, against the objection of defendant's counsel, certain schedules attached to the statement of claim, for the purpose of showing the statement of the account of the plaintiff against the defendant. In overruling the objection to their admission, the court below said: "These schedules are admitted as some aid to the jury in understanding the case, and because they are part of the pleadings in the case." The fact that the schedules were part of the pleadings would not render them admissible in evidence on behalf of the party who filed them. As to him they were merely self-serving declarations, which should not be allowed to affect the rights of his adversary. The correctness of the various items of charge set forth in the schedules was denied as a whole by the defendant in his affidavit of defense, and many of them' were taken up item by item, and their correctness, in the amount stated, denied in whole or in part. So that the schedules amounted to nothing more than plaintiff's own assertion of what was due to him. We think they should have been excluded as evidence.

Nor are we satisfied that there was any sound basis shown for the admission of proof of the rental value of the house as one of the elements of damage to the plaintiff. At the time when the plaintiff took possession of the building and proceeded upon his own account to carry it forward to completion, more than six weeks yet remained of the period within which the house was to have been completed by the defendant. It does not appear but that the defendant, if he had been permitted to do so, might have put on sufficient force to complete the building within the required time; nor was it shown why the plaintiff, after he took possession, did not complete the work within the time limit. In Crawford v. Becker, 13 Hun (N. Y.) 375, it was held that, where the owner takes possession of a building and completes it himself, he thereby waives his right to claim from the contractor the damages provided for in the contract for a failure to complete the building by a specified time. In the present case no attempt was made to claim the liquidated

of delay, and it was incumbent upon the plaintiff to furnish proof of his actual loss, if any, in this respect. It is apparent from the contract and the testimony that the building was intended for a residence, and no loss to the plaintiff was shown from the delay in getting it ready for occupancy as such.

In the fifth assignment of error, complaint is made that the trial judge permitted plaintiff's counsel, against objection on the part of the defendant, to examine the witness Callen upon the contents of a letter which had not been offered in evidence, and permitted him to read an extract from such letter. This was clearly in violation of a fundamental rule of evidence. "It is not allowed, on cross-examination, in the statement of a question to a witness, to represent the contents of a letter, and to ask the witness whether he wrote a letter to any person with such contents, or contents to the like effect, without having first shown the letter to the witness and having asked him whether he wrote that letter, because, if it were otherwise, the cross-examining counsel might put the court in possession of only a part of the contents of a paper, when a knowledge of the whole was essential to a right judgment in the cause. If the witness acknowledges the writing of the letter, yet he cannot be questioned as to its contents, but the letter itself must be read." 1 Greenleaf on Evidence (Lewis' Edition 1896) § 88. If counsel for plaintiff desired to show the contents of the letter, and to cross-examine upon it, he should have identified it, and offered it in evidence, and, if admitted, introduced it as part of his crossexamination.

The sixth, seventh, and eighth assignments of error relate to the portions of the charge referring to the computing of the damages. If counsel for defendant desired more specific instructions in this respect, they should have submitted points. In affirming the plaintiff's ninth point, his right to charge for finishing the house was restricted to the reasonable cost and expense incurred by him in the process. But if counsel for defendant desired that the attention of the jury should be more specifically or emphatically directed to the requirement that in reaching a verdict they must be satisfied from the evidence not only that the expenditures in completing the house were actually made as claimed, but that the outlay was reasonably necessary to complete the building in accordance with the plans and specifications, and that the outlay was made honestly and in good faith, then it was the duty of counsel to frame points for charge accordingly, and submit them to the court to be given to the jury.

The first, second, third, fourth, and fifth specifications of error are sustained, and the judgment is reversed, with a venire facias de

(223 Pa. 158)

ly responsive to any allegation in the bill

et al.

(Supreme Court of Pennsylvania.

1909.) EQUITY (§ 345*)—-RESPONSIVE ANSWER-CON

CLUSIVENESS.

A partnership filed a bill against a clerk to compel transfer of certain stock alleged to have been purchased by defendant with plaintiff's money. Defendant denied that he had ever agreed to purchase the stock for plaintiff, and averred that the moneys paid to him were moneys due by the plaintiff. The answer was met only by the uncorroborated evidence of one of the partners. Held, that the bill was properly dismissed.

[Ed. Note.-For other cases, see Equity, Cent. Dig. § 722; Dec. Dig. § 345.*]

Appeal from Court of Common Pleas, Beaver County.

Bill by the Real Estate & Mortgage Company against Will R. Cook and the Keystone Driller Company. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, ELKIN, and STEWART, JJ.

The decree is affirmed, at the cost of the appellant.

(223 Pa. 163)

MOUNTZ et al. v. NORTH VERSAILLES TP. (Supreme Court of Pennsylvania. Jan. 4, 1909.) HIGHWAYS (§ 213*)-DEFECTIVE ROADS-INJURY TO TRAVELER-QUESTIONS FOR JURY. In an action against a township to recover road, the question of defendant's negligence held for the jury.

PER CURIAM. The plaintiff is a partnership engaged in the real estate business. It is alleged in the bill filed that the defendant Cook was a clerk in its employ, was directed by it to purchase the right to subscribe for certain shares of stock to be issued by the Keystone Driller Company, and was furnished the money with which to make the payment necessary to secure the right; that in disregard of his duty he purchased the right and subscribed to the stock in his own name, and refused to transfer the stock to the plaintiff. It is denied by the answer that there was a direction or an agreement to purchase the stock for the plaintiff, or that money was received for that purpose. It is averred that the defendant learned from a source disconnected with his employment that the right to subscribe to some stock might be bought, and asked one of the partners to back him in the purchase to the extent of the money then due him by the partnership, and also asked him whether he would like to have some of the stock. The partner agreed to furnish the money as requested, but gave no answer as to his desire to purchase. The next day he told the defendant that he would take all the stock he could get up to an amount named. At that time neither of them knew what amount of stock could be bought, or whether any could certainly be secured. The money furnished was less than half the money due the defendant by the partnership.

PER CURIAM. Margaret E. Mountz, one of the plaintiffs, was injured by falling into a hole at the side of a public road. The main question presented by the appeal is whether a case of negligence on the part of the township was made out, clear of contributory neg. ligence on her part. On one side of the road there was a bank that sloped to a stream several feet below. According to the plaintiff's testimony the bank had in places been worn away by the action of water, and the bed of the road was undermined. At one place, where the traveled way was only 8 or 9 feet wide, there was a hole at the side of the road 7 feet deep. This hole had existed for several weeks. The plaintiff knew of it, and while walking with her daughter on a dark night tried to avoid it by keeping in the middle of the road. She stepped within 18 inches of the hole, and the earth gave way under her foot. The testimony showed gross negligence by the township authorities and the exercise of care by her. She was not proceeding heed

After the bill had been filed, the defendant transferred to the plaintiff the right as to one-half of the stock, and the controversy related to the other half. The answer was ful

"There was no question of contributory negligence, nor did the court consider that there was any question of risk assumed by the plaintiff that released defendant from liability."

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, ELKIN, and STEWART, JJ.

Wm. S. Dalzell, for appellant.

Wm. A.

and the effect upon its value for such use of the taking of a portion of the land by the city." It is argued that this instruction limited the finding of value after the taking to the particular use that had been the most valuable use before, while the real test was its highest value for any use for which it was adapted. The words "for such use," in the connection in which they were used, refer to the most valuable use, and not to the particular use that had been the most valuable before, and could not have misled the jury, in view of the clear and distinct instruction repeated in the charge that the

PER CURIAM. The judgment is affirmed, on the opinion of the learned judge below refusing to enter judgment non obstante veredicto.

(223 Pa. 165)

business purposes, was the use to be considered.

A witness for the plaintiff testified that he knew the value of the property before the taking, but had no knowledge of its value after. His testimony as to the value before was objected to on the ground that he was incompetent to testify as an expert, unless he knew the values both before and after

OF PITTSBURG.

(Supreme Court of Pennsylvania.

1909.)

In an action against the city for taking property of plaintiff church in widening a street, an instruction that the jury should consider, in determining the damages, the value of plaintiff's whole property for its most valuable use, and the effect on such value by the taking, was proper.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 370; Dec. Dig. § 138.*] 2. EVIDENCE (§ 474*)-OPINION EVIDENCE— VALUE.

A witness, who testifies that he knew the value of certain property before a part of it was taken by a city, may testify as to such knowledge, though he did not know the value of the property after such taking.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2217; Dec. Dig. § 474.*]

Appeal from Court of Common Pleas, Allegheny County.

Action by the Trustees of the First Presby

terian Church of Pittsburg against the City of Pittsburg. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before FELL, BROWN, MESTREZAT, ELKIN, and STEWART, JJ.

A. M. Thompson, W. B. Rodgers, and Lee C. Beatty, for appellant. J. M. Stoner, R. B. Petty, and M. W. Stoner, for appellee.

PER CURIAM. A part of the plaintiff's property used for church purposes was taken by the city of Pittsburg in widening a street. The court affirmed the following point presented by the plaintiff: "In estimating the damage sustained by the plaintiff, the jury should consider the value of the plaintiff's whole property for its most

tial elements in its ascertainment, was not a reason for excluding his testimony as to what he knew. If the other element, the value after, was fixed by other testimony, the jury would be in possession of facts to enable them by comparison of the values to fix the damages.

None of the assignments of error can be sustained.

The judgment is affirmed.

(223 Pa. 268)

WRIGHT et al. v. PITTSBURG RYS. CO. (Supreme Court of Pennsylvania. Jan. 4, 1909.)

STREET RAILROADS (§ 117*)-COLLISION WITH TEAM-QUESTION FOR JURY.

death of a driver, killed in a collision between

In an action against a street railway for

a wagon and an electric car, where the evidence shows that the team of deceased, after passing the first track, was struck at a crossing by a car on the second track, the question of defendant's negligence was for the jury.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 251; Dec. Dig. § 117.*]

Appeal from Court of Common Pleas, Allegheny County.

Action by J. L. Wright and Elizabeth Wright against the Pittsburg Railways Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, ELKIN, and STEWART, JJ.