Sidney Sch. Furniture Co. v. Warsaw Sch. District , 122 Pa. 494 ( 1888 )

Opinion,

Me. Justice Claek:

At the trial of this case, in the court below, the plaintiffs first gave in evidence the contract, dated July 25, 1885, upon which the suit is brought. By the terms of this contract, the plaintiffs agreed to sell to the defendant a certain quantity and kind of school furniture of their own manufacture, to be delivered on board the cars at the factory, “in knock down form,” and shipped on or about August 10,1885, to Mr. S. W. Temple, secretary of the board of school directors at Brockwayville station, etc. The price which was $985.81, was payable on the arrival of the furniture at the place named, in school orders or bonds, bearing six per cent interest from October 1, 1885, until paid for, and to become due on the following dates: $196.80, Oct. 1, 1885; $277.86, Oct. 1, 1886; $262.50, Oct. 1, 1887; and $249.15, Oct. 1,1888. They then offered the minutes of the board of school directors of Warsaw township, showing the purchase of the furniture by the board, and authorizing the execution of the contract. Mr. John Loughlin testified to the shipping of the furniture on the 6th of July, 1885. That he was mistaken as to the month is manifest, as the contract was not made until the 25th of July; he may have meant to say 6th of August, but no correction was made. There was some testimony by G. W. B rown, as to the arrival of part of the furniture at Brockwayviile on the 16th of August. The plaintiffs then called H. M. Sweet, the plaintiffs’ agent, by whom the contract was originally made on part of the plaintiffs ; he stated that he had called upon Mr. Temple, the secretary of the board, on August 26, 1885, for the purpose of making a settlement; that he demanded the school orders provided for in the contract, but Mr. Temple, admitting that the desks had been delivered at Brockwayville, said the board would not receive them; that the board had rescinded the contract; that it was not worth while for Sweet to see any of the other directors, as they did not intend to, and would not, accept the goods, and the school orders would not be delivered.

The plaintiffs having made out what they thought to be a prima facie case, rested; thereupon the court entered a compulsory nonsuit and subsequently refused to take it off; this is the error assigned.

It is contended on part of the defendant, first, that there was not sufficient evidence to justify a jury in inferring the fact of a delivery of the goods, in accordance with the contract ; second, that there was no evidence of Sweet’s authority to demand a settlement, or to receive payment if there had been a delivery ; and third, that if he had such authority, the demand should have been made of the board, and not of the secretary. This contention on part of the defendant cannot be sustained. Mr. Temple was not only the secretary of the school board, he was the person to whom, by the terms of the agreement, the furniture was to be shipped and delivered; his acts and declarations, with respect to the delivery, were therefore the acts and declarations of the board; for in this he represented the board. Whenever an agent performs an act representing his principal, what he does or says in respect of the act while it is in progress, is so far part of the res gestee as to be subsequently admissible in evidence on behalf of either party, and whenever the agent’s acts are admissible, then his declarations explanatory of these acts are also admissible; it is not necessary that he himself be called to prove them: Whar. Ev. § 1173; 1 Greenleaf Ev. 113; Hannay v. Stewart, 6 W. 487 ; Reed v. Dick, 8 W. 479.

When confronted by the plaintiffs’ agent, Temple refused to accept the furniture, and what he said and did at the time of the refusal was part of the res gestee; they Avere acts and declarations in the course of the business specially intrusted to him, and as such were evidence against his principals. Iiis declarations were admissible, not so much perhaps for what he said as what he did; what he said shed light upon what he did, and we are thus enabled to scrutinize his acts according to his real intention. From what he said we know that the refusal to accept the goods was not because a part only had been delivered, for he admitted the delivery at Brockwayville; he made no objection on that account; this was not the admission of a past occurrence, it was the statement- of an existing fact, viz.: that the desks were then in fact at Brockwayville, hut the board through him refused to accept them. Nor was the refusal to settle with Sweet because of any want of authority in him from the Sidney School Furniture Co.; the reason assigned was, that the contract was rescinded, and the goods, upon that ground, would not be accepted. Under such circumstances it was not necessary for Sweet to exhibit his authority; noil constat if the board had been willing to close the matter, that his authority would not have appeared.

Nor was it required of the plaintiffs that the demand for settlement should be made upon the board of school directors, as such; for it was not in the plaintiffs’ power to convene the hoard, and they were certainly not hound to await the convenience or willingness of the school directors to assemble for this purpose; especially was this so if the board had already declined to accept the goods and refused to pay the price.

It is certainly true, as stated in the opinion of the learned judge of the court below, that the old scintilla doctrine has been long since exploded; the more reasonable rule is now, as stated by Mr. Justice Sharswood in Howard Exp. Co. v. Wile, 64 Pa. 201, that where there is any evidence, which alone would justify an inference of a disputed fact, it must go to the jury. There is in every case triable by jury a preliminary question of law for the court, whether or not there is any ■evidence from which the fact sought to be proved may be fairly inferred; if there is, that is sufficient to send the case to the jury, no matter how strong may be the proofs to the contrary. It is unnecessary to cite authorities in support of a principle so plain; this is the doctrine now generally recognized, not only in the courts of this and the sister states, but also in the Federal and English courts. In determining the sufficiency of the evidence, the court must of course take it as true, with every reasonable inference favorable to him who has the burden of proof: Blakeslee v. Scott, 37 Leg. Int. 474.

In this case the execution of the contract was admitted; that it was authorized by the board was shown by their minutes, and it was read in evidence; the secretary of the board to whom the delivery was to be made admitting that the desks were delivered at the place agreed upon, asserted that the agreement had been repudiated by the board, refused to receive the goods, and to pay the price. Certainly this presented a case for the jury. We think the court erred in not taking off the nonsuit.

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