Frisbie v. McFarlane , 196 Pa. 110 ( 1900 )

Opinion by

Mr. Justice Mitchell,

This judgment must be reversed for wide departure from the ' verdict on which it was entered. Hiram Frisbie and Horace Kipp, trading as Hiram Frisbie & Co. brought suit against McFarlane & Co. and at the last trial the jury rendered a verdict for defendants with a certificate in their favor. The parties stood as above stated, the jury were sworn, and the verdict rendered, upon the record in that form. But without regard to all this, judgment was entered by precipe from counsel in favor of defendants against Horace Kipp, G. W. Kipp and E. F. Kizer trading as Hiram Frisbie & Co., for the amount of the certificate given by the jury. Such judgment was wholly without warrant of any kind. A judgment must conform to the verdict on which it is entered. The addition of G. W. Kipp and E. F. Kizer, who were not parties at all to the suit, is the subject of a separate appeal and will be considered in that case. But the omission of Hiram Frisbie was error of which Horace Kipp has just cause of complaint. Frisbie was his coplaintiff on the record, the jury were sworn and the verdict rendered jointly against both. There was no authority to omit one from the judgment.

If this were all the judgment might merely be reversed and the case sent back for the entry of a new judgment conforming to the verdict. But there is a more vital error.

The action was for breach of a lumber contract in writing between Hiram Frisbie & Co. and James McFarlane & Co. the names of the individual partners of either firm not appearing in the contract. The breach alleged by plaintiffs was admitted but the defense was upon other breaches by Frisbie & Co., G. W. Kipp & Co. and Kipp & Kizer, the essential element of the defense being that these three firms were identical. A set-off of this nature against the parties plaintiff on the record is available to the defendants as wrns held in Chambers v. Davis, 3 Wharton, 40, which will be more particularly noticed in the next case, Kipp et al.’s Appeal, post, p. 116. But under the circumstances of this case it required to be presented to the jury with particular care and discriminating reference to the evidence. This we are obliged to say it did not receive. No reference was made to the facts that the three firms were distinct not only in name, but in the persons of the partners, and in the dates of the contracts in which they were concerned, this last consideration being of such importance that the contract of Kipp & Kizer on which they were brought into the case was not made until after this suit had been begun by Frisbie & Co. The presumption was that the firms were not identical, and the burden of showing that they were, was upon the defendants, but no hint to that effect was given to the jury. On the contrary they were charged, inter alia, “ So far as the evidence goes Frisbie did not appear upon the place at all. He was eliminated from the business and from this case at a very early stage of the case, so that the people with whom you have to deal are Horace E. Kipp, Geo. W. Kipp and E. F. Kizer.” And again, “ whether they (G. W. Kipp and Kizer) were interested financially in the firm of Hiram Frisbie & Co. is a material question in this case.” For one firm to be financially interested in another is a different thing from being identical with it in such sense as to make both responsible for what either does, yet this was all the instruction the jury received on this subject. We are obliged to say that the charge was not only inadequate but misleading.

Judgment reversed and venire de novo awarded.