Peirson v. Duncan , 162 Pa. 187 ( 1894 )

Opinion by

Mr. Justice McCollum,

There was no dispute between the parties in. regard to the quantity, quality or price of the pelts delivered, or in respect to the payments made on account of them. But the plaintiff claimed that the defendants verbally promised to furnish him one hundred and twenty dozen pelts each week from the 18th of July, 1891, to the first of January, 1892, and that in violation of their promise they refused to deliver pelts to him after September 4,1891. He also claimed that in consequence of their refusal to deliver the pelts he sustained damage equal in amount to the profit he would have made if they had complied with their promise, and this profit he estimated at one dollar and fifty-nine cents a dozen. The defendants positively denied the existence of any such agreement between them and the plaintiff as was testified to by him, and they introduced evidence to show that, at -the prices he paid for the pelts, it was not possible for him to make the profit upon them which he claimed as the measure of his damages for their default. While denying that they were bound to furnish pelts to the plaintiff in accordance with his claim, the defendants admitted that, from the 18th of July to the 4th of September inclusive, they sold to him seven hundred and nine dozens of them ; and they averred that they ceased to sell them to him solely because of his inability or unwillingness to pay for them on delivery. To this averment the plaintiff replied that he was not bound to pay for the pelts when they were delivered, but that, under a previous course of dealing between the parties and a custom of the trade, he was entitled to thirty days within which to pay for them after their delivery to him. It will be observed from this statement of the claims of the litigants that there were several issues of fact to be decided by the jury upon the evidence. Was there a contract between the parties, and if so what were its terms? Was the plaintiff to pay for the pelts on delivery or thirty days thereafter? Was the evidence in relation to prior dealings between the parties and a usage of the trade sufficient to overcome the presumption that the pelts were tobe paid for when delivered? Assuming that the defendants were bound to furnish pelts to the plaintiff in accordance with his claim, what damages, if any, did he sustain in consequence of their refusal to do so ? These were questions naturally arising from the evidence and to which the attention of the jury should have been directed in appropriate instructions. But the learned trial judge submitted the case without any reference to the legal principles applicable to it, and upon an inadequate and misleading statement of the claims of the contending parties. He told the jury what the plaintiff claimed in regard to a contract with the defendants for the sale and delivery of pelts, and that the defendants denied having made any such contract with him. He also told them what the plaintiff claimed in respect to the damages sustained by the breach of the contract, but he did not refer to the testimony submitted by the defendants in answer to the claim for damages, nor furnish the jury any rule or standard by which the damages were to be measured. The omission of instructions in relation to damages left the jury without any guide whatever in the ascertainment of them, and iii this particular the charge was clearly inadequate. In its statement of the claims made by the parties it was misleading because, while the plaintiff’s claims were fully presented in it, the claims of the defendants were not so presented. The plaintiff’s claim in relation to damages rested solely upon his own oath, while the defendants’ answer was supported by the testimony of three disinterested and intelligent witnesses, and yet the learned judge brought the former to the attention of the jury and did not even allude to the latter. These witnesses were familiar with all the known processes or methods of tanning and were engaged in the same business as the plaintiff. They testified that in 1891 there was no profit in tanning pelts at the prices the plaintiff paid for them. This testimony, if brought to the attention of the jury and credited by them, would have defeated the plaintiff or reduced the verdict in his favor to a nominal sum. The plaintiff’s only answer to it was that he was the possessor of a tanning process of his own discovery which was known only to himself “ and to a man that he could trust,” and that by means of it he was able to make a profit in tanning pelts while other parties were losing money in the business. He did not call the “man that he could trust” to corroborate him in this statement.

In Penna. Land Co. v. Harris, 101 Pa. 80, Mr. Justice Mercttr, speaking for this Court, said: “ It is error to confine the attention of the jury to one view of the case where there is more than one which they should consider: Garret v. Gonter, 42 Pa. 148; Relf v. Rapp, 3 W. & S. 21. If no particular instructions be asked, the court is responsible for the general effect only of the charge; and, in considering the charge, the whole of it must be taken together. If, when so considered, it has a tendency to mislead, though no particular portion of it he clearly erroneous, it is cause for reversal: Washington Mutual Fire Insurance Co. v. Rosenberger, 3 W. N. 16.” See also the opinion of our brother Green in Penn Iron Co. v. Diller, 17 W. N. 6. In accordance with the principles stated in the cases cited, we sustain the 5th and 6th specifications of error. We are not convinced that there was any error committed in the refusal of the defendant’s first point or in the ruling complained of in the 1st specification; nor are we satisfied that the excerpts from the charge which are complained of in the 2d and 3d specifications constitute reversible error.

Judgment reversed and venire facias de novo awarded.