Clark v. Johnson , 1879 Pa. LEXIS 276 ( 1879 )

Mr. Justice Mercur

delivered the opinion of the court,

_ This action was against Johnson & Orr, copartners, trading as Hazleton, Orr & Co. It was on a promissoi'y note executed in the name of the firm, for merchandise bought of the plaintiff. The case was submitted to the decision of the court without the intervention of a jury. The court found as facts that the business of the defendants was dealing in drugs, paints, oils, glass, &c.', at retail; but sometimes they sold at wholesale; that the consideration of the note was four barrels of cologne spirits. Each was bought at a different time, but all wdthin two months; they were bought by Orr, who was the acting member of the firm, in the name of the firm, and that the purchase of such spirits was within the general scope of the business in which the firm was engaged; that Orr was engaged in another place in business, in the same town, to which the second barrel was sent, and no entry was made on the books of defendants indicating the purchase thereof. The court, therefore, found as a conclusion of law, that the shipment of this barrel to E. D. York & Co., of which Johnson was not a member and had no knowledge, created no valid claim against the defendants. This conclusion presents the main question in the case.

The only evidence bearing directly on the custom of this mode of shipment is, that of A. Gerrould. He testified, it often happens that goods are ordered by a customer before the order is sent by the dealer to the seller, and they are often shipped directly to the customer. Thus this evidence was to the effect that such a mode of shipment was within the general custom of dealers in merchandise, and there was no evidence to the contrary. We think this custom of so ordering goods shipped, is practised to some extent by all dealers in merchandise. We, therefore, are unable to see that the mere fact that one barrel was ordered to be shipped, and was shipped, to the address of another firm in the same town, creates any presumption that it was not sold in good faith to the defendants. It was not calculated to excite the suspicion of a prudent vendor, nor sufficient to put him on inquiry. The learned judge assumed as a fact, that the order for the barrel in question was dated at Buffalo, N. Y., whereas, in truth, instead of being so dated, it was addressed to the plaintiff at Buffalo. This erroneous reading was caused by reason of the order having been so attached to the depositions as to cover the name of the plaintiff. The removal of the covering removes all ground for the assumption. This corrected reading, as shown on the face of the order, necessarily changes the conclusion of law at which the court arrived. Without further discussion of the assignments, all the other facts found show the learned judge erred in not entering judgment in favor of the plaintiff, for the whole amount of the note, with interest.

And now, to wit: October 6th 1879, judgment reversed and judgment in favor of the plaintiff against the defendant, for $579, and costs in the court below.