Volkenand v. Drum , 154 Pa. 616 ( 1893 )

Opinion by

Mr. Chief Justice Sterrett,

. On the trial of this issue, directed by the court to determine how much was due on the note, upon which the judgment opened, etc., was entered, the defendant was permitted to introduce testimony to sustain the offer recited in the first specification of error. The objection to the offer was, “ that the evidence was incompetent, its effect being to vary, alter and amend the written agreement which shows the actual contract between the parties.” This objection was not well taken, and hence there was no error in overruling it and receiving the testimony.

The consideration of the note was part of the sum which defendant agreed to pay plaintiff for a certain bottling business, and the appurtenances, sold by him to defendant. As expressed in the written agreement, said sale was of “ all his, A. F. Volkenand’s bottling business located in a certain-frame building situated on West Green street, between Vine and Locust, in Hazleton borough, consisting of three wagons, two horses, one set of double harness, bottles, boxes, and in fact everything in and about the premises pertaining to the bottling business hereby sold.” The agreement, as will be observed, does not specify the number of “ bottles ” and “ boxes; ” and, inasmuch as many of these were then, necessarily, in the course of the business, in the possession of plaintiff’s customers, defendant was obliged to rely on plaintiff’s representations as to the number of each then out, temporarily, in the hands of his customers. The testimony complained of was offered for the purpose of showing that plaintiff deceitfully and fraudulently misrepresented to defendant, “ that he had in connection with his bottling business nine hundred boxes filled with bottles; ” that these boxes and bottles were distributed among his customers, etc. The evidence introduced came fully up to the terms of the offer, and appears to have satisfied the jury that the alleged fraudulent misrepresentation was successfully practiced, and consequently there was a failure of consideration at least equal to the amount of the note in controversy.- The verdict in favor of the defendant in the issue necessarily implies a finding of these facts.

There was no error in admitting the evidence referred to in the second specification. It is of the same character as that already referred to in connection with the offer covered by the first specification. If the learned judge’s action in admitting the evidence complained óf needed any vindication, it will be found in what he said in disposing of plaintiff’s objection.

The subject of complaint in the third specification is an excerpt from the charge of the court.

In'that portion of his charge, the learned president of the common pleas clearly and accurately explained to the. jury, that the purpose of defendant’s evidence was not to impeach and overthrow the written agreement; and, in that connection, he said: “ The plaintiff’s counsel contends that because the written contract does not specify the number of boxes and bottles sold, therefore it is incompetent to show by oral testimony what was said between the parties on that subject. . . . But that fact, in our judgment, is not a conclusive fact, and therefore'we have • admitted the testimony as to what was said between the parties concerning the number of boxes and bottles connected with the business.”

There is not the slightest semblance of error in that or any ■other part of the charge. As established by the verdict, based upon competent evidence, the troublesome and controlling fact, with which plaintiff had to contend, was that in effecting the sale and obtaining defendant’s notes for the price agreed upon, he practiced a fraud, by deceitfully misrepresenting the number of boxes and bottles connected with his bottling business, the consequences of which fraud, measured in dollars and cents, ■the defendant had a right to defalk against his outstanding obligation.

The plaintiff’s seven points for charge, recited in the last

seven specifications, were-each" negatived. Without breaking bulk and undertaking to vindicate the action of the court in refusing to affirm those points*, respectively, it is sufficient to say they were each and all rightly answered in the negative. In refusing the seventh point, the learned judge correctly and appropriately said to the jury : “You will observe that thesé points all ask us to practically take the case from the jury and decide as a question of law. We-negative them because we think there are questions of fact to be decided by the jury, and these questions we submit to you under the general instructions contained in our charge.”

The case was ably and correctly tried, and there is nothing, in any of the rulings of the court, of which the plaintiff can justly complain.

Judgment affirmed.