Van Sciver Co. v. McPherson , 1901 Pa. LEXIS 602 ( 1901 )

Opinion by

Mb. Justice Mestbezat,

This was an action of replevin brought by the plaintiff to recover from the defendant certain furniture and upholstery goods. The property was delivered by the sheriff to the plaintiff.

These goods were sold by the plaintiff to the defendant, but she failed to pay for them. When the plaintiff’s collector presented the bill for payment, the defendant told him she had nothing and that her estate had been squandered. This action was then brought to recover the goods, on the ground that they were obtained from the plaintiff by fraud. In support of the allegations of fraud, the plaintiff claimed and produced testimony to show that at the time the defendant purchased the goods, she represented that the estate of her deceased husband was large, and that she had ample means of her own to pay any liabilities she might incur. It is claimed by the plaintiff that both representations were false and were known to be so by the defendant at the time she contracted for the goods. To aid her in committing the fraud, it is alleged by the plaintiff that the defendant referred the company to one George E. Payne as to her solvency, and that, at her instance, Payne addressed the plaintiff a letter, which was in evidence, to the effect that she was responsible for the price of the goods sold her. The defendant denied that she procured the goods under these or any other false representations. This was the issue submitted for the determination of the jury.

The first assignment alleges error in sustaining the defendant’s objection to a question addressed to George E. Payne. He was called as a witness by the plaintiff and testified that he had written the letter referred to above at the request of the defendant in his office and when she was present. The plaintiff’s counsel then asked Payne the following question: “Now just state all that occurred at that time between you and Mrs. McPherson and what led to the writing of the letter.” Upon objection by defendant’s counsel, the answer was excluded. No reason for the ruling of the court appears on the record. We do not see why it was objectionable. It was alleged that the letter was a part of the fraudulent means by which the defendant secured the goods. Everything that occured between the defendant and the witness at the time it was written was therefore clearly competent as tending to establish the former’s fraudulent conduct. That was the effect of the question proposed to the witness, and the reply should have been received. Fraud was the basis of the action, and in its investigation great latitude is permitted in the admission of evidence. As said by our Brother Fell in Glessner v. Patterson, 164 Pa. 281: “ As the plaintiff (here defendant) participated in them (acts and declarations of the parties), all she said at the time, or before or after, which explained or qualified them, or tended to show the falsity of her claim, was evidence for the defense.” The witness should have been permitted to answer the question.

The second assignment of error must also be sustained. The defendant being on the witness stand and having testified in chief that she had 11,000 of her own means and had deposited it in the bank before the purchase of the furniture, the plaintiff’s counsel asked her on cross-examination: “Before the purchase of the furniture, and from whom did you receive the |1,000?” The court sustained an objection to the question. One of the representations alleged to be false was that at the time the defendant purchased the furniture, she had means of her own to meet the liabilities she might incur. Her testimony to establish the truth of the representation and to rebut the allegation that it was false, was offered and tended to show that she had the HI,000. It was, therefore, permissible to ask her from whom she received the money and to cross-examine her fully in regard to the matter. It was concerning a matter about which she had been interrogated in chief and bore directly upon the issue between the parties.

The remaining assignments need not be considered. The matters therein alleged as error will not occur on another trial.

The statement of the question involved by the appellant is in direct violation of Rule 26 of this court. That rule provides that the statement should not exceed six or eight lines, and must not, under any circumstances, exceed half a page. Here the statement contains twenty-nine lines, occupying nearly an entire page. This defeats the object of the statement of the question involved and is worthless for the purpose for which it was intended, viz: to enable the court to obtain an immediate view of the nature of the controversy. When counsel disregard the rule, they assume the risk of having their client’s cause defeated, not for want of merit, but by reason of a failure in this respect to perform their duty. The rule is mandatory, and had the matter not escaped attention on the argument, or had the proper motion been made by appellee’s counsel, the paper-book would have been suppressed and the appeal nonprossed. These remarks are intended to admonish the profession that the rule will be strictly adhered to and enforced.

The first and second assignments of error are sustained, and judgment is reversed and a venire facias de novo is awarded.