Philadelphia Inquirer Co. v. Sabia , 90 Pa. Super. 266 ( 1926 )

Argued October 28, 1926. Anthony J. Sabia traded as the Park Realty Company. Over that name there appeared in the Philadelphia Inquirer a number of advertisements which had been received by the "Inquirer" company through the regular course of business. In what particular manner they reached the plaintiff's establishment was not proved. The court admitted the books as prima facie evidence of the advertisements having been received from the defendant through some regular channel and that the items therein exhibited were correct. The ledger account gave defendant's address as 7350 Oxford Street and he had a branch office at that location. He testified that he had no agents at that place, that two persons had desk room there but were not in any way employed by him or engaged by him to act for him. He admitted that some of the items contained in the bill of the plaintiff, amounting to $9.45, were correct, but he said he knew nothing about the other advertisements, did not know they had appeared and absolutely disavowed any connection with the insertion of them in the newspaper or any ratification thereafter.

The trial judge evidently believed the defendant's story and found in favor of the plaintiff only for the amount admitted to be due, $9.45. When the matter came before three judges of the Municipal Court to whom the review of the trial was committed, they entered judgment n.o.v. for the plaintiff for the full amount of his claim. They were moved to do this apparently by the fact that the plaintiff presented a prima facie case and that the defendant had not overcome this. We cannot agree with that conclusion. The books of original entry were indeed prima facie but not conclusive. The oath of the defendant, if believed, overcame any proof of that kind and whatever force may be given to the books of original entry, the plaintiff knew best what he had done. It had never been held that the offering of the books carries with it such force that the testimony of the defendant cannot overcome it. The finding of the trial judge, if founded upon competent testimony, has the same weight as a verdict of the jury. The only basis upon which the judges reviewing the case could enter judgment for the plaintiff for the whole amount of the claim was that were the judge trying the case before a jury, he should have given binding instructions for the plaintiff. As we have said before, the defendant denied ordering the advertisements, there was a conflict of testimony and the judge had to decide which side had the better case. As was said by our Brother KELLER in Shatz v. American Railway Express Company, 80 Pa. Super. 335, in a case appealed from the Municipal Court, "The Court in banc was confined in its action to the evidence produced at the trial and unless that warranted a direction for the defendant judgment n.o.v. could not be entered." See McDonald Construction Co. v. Gill,285 Pa. 305; Duke v. North Penn Gas Co., 220 Pa. 348; Costello v. Long, 62 Pa. Super. 13, 16.

As the plaintiff was led to believe by the conclusion of the trial judge as to the effect to be given to his books of account that he was not required to produce any further testimony although he alleges he was ready to submit additional proof, we grant a new trial.

The judgment of the Municipal Court is reversed with a venire.