McCracken v. Hamburger , 139 Pa. 326 ( 1891 )

OpiNioN,

Mr. Justice Sterrett :

In view of the facts which the evidence tended to prove, and which the jury, under the charge of the court, must have found as the basis of their verdict, there was no error in the instructions recited in the only specification before us.

It appears, among other things, that the rye, for the price of which plaintiffs obtained a verdict, was purchased by George W. Jones in March, April, and May, 1884, and shipped to him at Brownsville, where, for a long time before, he was engaged in carrying on the business of distilling. As proprietor of the distillery bearing his own name, Jones had considerable dealings with the plaintiffs. In September, 1881, defendant contracted with Jones for the entire product of his distillery, and advanced money to carry on the business. Six months thereafter, he advanced an additional sum, for which he was to receive half the net profits of the business. By an agreement of September 26, 1883, the distillery property was transferred to defendant for the consideration of $16,273.49, which was applied to Jones’s indebtedness, etc., for money advanced to carry on the business. By the terms of that agreement, Jones was retained as distiller, and bound himself to give his entire time and attention to the “ proper running of the distillery.” The name and trade-mark, “ George W. Jones,” was also transferred to the defendant. That name was retained on the distillery, and business was continued as before, without any visible change in the premises, or in the manner of conducting the business; nothing, in fact, appears to have been done to indicate any change of ownership. In answer to the question whether Jones did not continue “ right along as he had been,” defendant testified: “ I run the distillery under the name of Jones because he had been— Jones was known to the trade at large.” “ There was no visible change in relation to things.” Defendant also testified, in substance, that after he purchased the distillery, in October of same year, he commenced dealing with the plaintiffs, purchased grain, etc., from them for the distillery, and ordered the goods shipped to “ G. W. Jones, Brownsville;” that there was no visible change made at the distillery, and such supplies as he purchased he ordered shipped to “ G. W. Jones,” because the distillery was run under G. W. Jones. He, however, testified that shortly after commencing to' deal with plaintiffs in the fall of 1883, he informed them that he had purchased the distillery, and was carrying on the business for himself; but, in that he was contradicted by both of the plaintiffs, who positively denied having received any such information from him, or any one else, until long after the rye in controversy was ordered for the distillery by Jones, and shipped to his address.

In view of the foregoing, and other evidence of similar import, the learned president of the Common Pleas was clearly warranted in submitting the case to the jury on the questions of fact to which their attention was called. He instructed them, in substance, that the management of the business by Jones, before the sale, and the fact that he subsequently retained his position in the distillery, without any change visible to persons who had dealt with him before, etc., would fairly justify them in finding defendant liable for supplies bought for the use of the distillery; that defendant would be liable for any contracts made by Jones for distilling purposes, unless the parties with whom they were made had such notice of a change of ownership as would indicate to them that Jones had no right to bind Hamburger by purchasing supplies for the use of the distillery. Referring to the testimony of Hamburger, wherein he stated, in substance, that he notified plaintiffs that he had purchased the distillery, and would thereafter do his .own buying, etc., he said' to the jury: “ If that be so, the plaintiffs had no right to sell anything to .Jones and charge Hamburger for it.” On the question of fact whether plaintiffs had any such notice or not, the jury evidently found in fa yor of the plaintiffs’ view of the case, as presented in the portion of tlie charge assigned for error.

The case hinged on questions of fact, which were fairly submitted to the jury, who found in favor of the plaintiffs. There appears to be no error that requires a reversal of the judgment.

Judgment affirmed.