Hastings v. Speer & Co. , 15 Pa. Super. 115 ( 1900 )

Opinion by

Rice, P. J.,

The defendant gave an order to the plaintiff for a quantity of lumber to be shipped to a customer of the defendant at Depew near Buffalo in the state of New York. The lumber was duly shipped but the defendant’s customer refused to accept it. There was some controversy between the parties as to whether the lumber was of the kind and quality ordered. But it is not necessary to discuss the merits of that controversy here, for both parties admit that in settlement of it a new agreement' was entered into to the effect that the lumber should be sold, and the loss on the sale be equally divided between the plaintiff and the defendant. The lumber was sold by one Brown, a commission dealer, who paid to the plaintiff $100 and embezzled the remainder of the proceeds of the sale. The principal question in the case was whether or not the defendant was liable to the plaintiff for one half the loss consequent upon Brown’s embezzlement. The determination of this question depended upon the terms of the new agreement above referred to. Upon that point the testimony was conflicting. The plaintiff contended on the trial that the agreement was that Brown should sell the lumber and pay the proceeds to the plaintiff, and that if there was any loss the defendant would pay one half, in other words, that the lumber was to be sold for their joint account, and that Brown was the chosen agent of both parties in the transaction. The defendant’s contention was : that the plaintiff undertook to sell the lumber on his own- re-• sponsibility, and that the defendant undertook to pay him one half the difference between what it cost the plaintiff in Buffalo and what he should sell it for. If this was the agreement the defendant was under no obligation to make good any part of the loss occasioned by the embezzlement of the agent selected by the plaintiff to make the sale, and so the learned judge correctly and very clearly instructed the jury. It is thus seen that the admission contained in the plaintiff’s sworn statement of claim that negotiations had been entered into between plaintiff and defendant in respect to the lumber “ whereby plaintiff undertook to dispose of the same so that defendant would not be subjected to a great loss ” was material and relevant to the issue submitted to the jury. If it did not conclude the plaintiff, the admission was certainly important evidence in favor of the defendant’s contention. The reason given for not permitting the defendant’s counsel to read it to the jury is not satisfactory. It is true he had not offered the statement of claim in evidence, but the learned judge inadvertently overlooked the fact that the plaintiff had put in evidence so much of the statement as was “ admitted and not denied in the affidavit of defense.” This part of the statement was not denied, therefore it was in evidence for all purposes as fully as if the defendant had offered it. It follows that it was error to refuse defendant’s counsel permission to read, and comment on the same to the jury. The fourth assignment of error is sustained.

Assuming that the agreement was as claimed by the plaintiff, what was the net loss and what is the amount still due from the defendant? Upon the present assumption the balance due from the defendant was to be ascertained by deducting from the cost of the lumber at Buffalo the sum received from Brown, dividing the balance by two and crediting the defendant with the $150 advanced by him to pay freight. If $818.48 was the cost of the lumber delivered at Buffalo the amount due from the defendant without interest was $209.24. If, however, $818.48 was the original cost of the lumber at point of shipment, as urged by plaintiff’s counsel, and the freight to Buffalo was $150, as intimated in the defendant’s testimony, the balance due without interest was $284.24. In either view of the facts the instructions complained of in the third assignment of error were not strictly accurate, but in the latter view they resulted more favorably to tbe defendant than he was entitled to demand. The evidence upon the subject is not clear, and the defendant has not seen fit to print the copy of the account attached to the plaintiff’s statement, which, perhaps, would have cleared up the difficulty. On another trial the facts will doubtless more clearly be shown, and we have stated the rule that is to govern. It is not necessary to discuss this assignment further.

The second assignment does not require particular discussion further than to say that the remark complained of, as explained by the clear instructions which followed, was not prejudicial to the defendant. The question at issue under the evidence was fairly presented, in terms which the jury could not have failed to understand. The effect of this instruction was to prevent their minds from being diverted from that issue, and deciding the case upon the unwarranted theory that there was an absolute and unconditional rescission of the sale. This assignment is overruled.

By a strict application of the general rule that cross-examination must be confined to matters stated in the examination in chief the court was fully warranted in the rulings complained of in the fifth and sixth assignments. Moreover, even if the court applied the rule too strictly it did the defendant’s case no harm, for when in the presentation of his own case he called the plaintiff for cross-examination the court informed him that he could then cross-examine fully upon the matters referred to in the assignments, and he availed himself of the privilege. In no view have these assignments any merit. They are, therefore, overruled.

The question raised by the first assignment is not free from technical difficulty, but we are not convinced that it has substantial merit. The plaintiff, anticipating the defense that would be set up, alleged in his statement of claim, whether regularly or not is immaterial, that the new agreement by which the extent of the defendant’s liability should be determined was void for fraud. The defendant set up the new agreement in his affidavit of defense and introduced evidence to sustain it. This was met by counter evidence as to the terms of the agreement, but by no evidence sufficient to warrant the plaintiff in rescinding it upon the ground of fraud. The new agreement as established by the verdict went to the amount of the defendant’s liability, not to the plaintiff’s right to recover anything on the original contract. We cannot say, therefore, after a full trial on the merits, induced, by the defendant’s own action, that the issue raised by the evidence was so different from that raised by the pleadings that it was error to submit it to the jury. If the defendant had seen fit to offer no evidence, the plaintiff’s situation under the pleadings when he rested his case in chief might have been more serious. This assignment is not sustained.

The judgment is reversed and a venire facias de novo awarded.