Brinn v. Levine ( 1906 )

GIEGERICH, J.

This action was-brought to recover the purchase price of certain pieces of cloth claimed to have been sold and delivered to the defendants by the plaintiffs. One of the items is for a piece of cloth known as “thibet,” which the defendants admit they purchased. It appears from the evidence that, after the defendants had received the goods, they sent them to a sponging establishment, then doing business under the name of the Independent Cloth Sponging & Refinishing Works, where it was discovered that they were damaged, whereupon the plaintiffs, upon being notified, requested the defendants to select another piece of cloth, which they did, and requested the plaintiffs to take it to the sponging establishment above named in exchange for the damaged goods. There is a conflict of testimony as to whether or not such new piece of cloth was ever delivered to the sponging establishment. Mr. Simon Brinn, one of the plaintiffs, testified that the boy in their employ, on June 22, 1905, in his presence, delivered to the man in the office of the sponging establishment the cloth so selected, and received in exchange the damaged goods, and that at the same time he also received a receipt bearing date that day, which receipt was admitted in evidence against the defendants’ objection and exception, and marked “Plaintiff’s Exhibit 1.” The defendants denied that they received the new piece of cloth, and called one Simon Schiff, who testified that he had formerly been connected with the sponging establishment, of which he said one Solomon was the proprietor, whose absence for a period of three or four weeks caused the establishment to suspend business in the latter part of June, 1905; the witness remaining, in the meantime, in charge for the purpose of returning goods belonging to customers. He further testified that on July 5, 1905, a man came with a written order, to whom he delivered the piece of cloth, and that he did not receive any goods in return. The order referred to was put in evidence by the defendants, and marked “Defendants’ Exhibit 4.” Before it was altered, it read as follows:

“New York, June 22, 1904.

“Gentlemen: Kindly deliver to bearer the piece of thibet of the acct. Levin & Shapiro, which you have for return, and I am sending you another piece in place of it.

“Yours truly, S. Brinn.”

The writing, as admitted in evidence, shows that it was altered by the striking out of the date “June 22” and the substitution of “July 5th” in the same kind and shade of black ink, and at the end by the crossing out of the words “I am sending you another piece in place of it.” The witness Schiff and the plaintiff Simon Brinn disclaimed having made such alterations. Schiff, upon being shown the receipt (Plaintiffs’ Exhibit 1), testified that he did not know in whose handwriting the signature was, and that he did not “know the name at all,” and that “we had no such man in our employ.”

It will be seen from the foregoing summary of the evidence that the determination of the question whether or not there was a delivery of the cloth to the sponging establishment by the plaintiff turns largely upon the date of the return of the damaged goods. If, as claimed by the defendants, they were returned on July 5th, then it is evident that the plaintiff Simon Brinn must have been very much mistaken in swearing that when the new goods were' left at the sponging establishment on June 22d the damaged ones were received in return. On the other hand, if the damaged goods were returned on June 22d, then obviously the date as well as the body of the order (Defendants’ Exhibit 4) were altered subsequently to such date, and the testimony of Schiff as well as of both defendants upon' the point under discussion is not entitled to credence. It is clear, therefore, that if no objection had been raised as to the admissibility in evidence of the alleged receipt by the sponging establishment of June 22d (Plaintiffs’ Exhibit 1), it would have had a determining influence on the settlement of the conflict in testimony upon the- question under discussion. Recurring now to a consideration of the exceptions taken to the admission of such writing, it should be observed that, although the plaintiff Simon Brinn testified that he accompanied the boy on June 22d, when he says the new goods were exchanged for the damaged ones, the boy was not called as a witness, nor was his absence accounted for by the plaintiffs, in whose employ he was at the time such exchange is claimed to have been made. Nor did the plaintiffs call any other witness to corroborate the testimony of Simon Brinn. The latter testified that the receipt in question was signed by “the man in the office of the sponging place.” The record, however, fails to disclose that such man was employed in, or connected with, the sponging establishment, and, for aught that appears to the contrary, he may have been a stranger temporarily in the office during the absence of a regular employé.

Under all these circumstances, I think it was prejudicial error to admit the receipt (Plaintiffs’ Exhibit 1), and for such error the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.