Jones v. Cleveland , 6 Pa. Super. 640 ( 1898 )

Opinion by

Beaver, J.,

This case was, in the main, well tried and fairly submitted to the jury. The evidence in regard to the receipt of the bill for a second shipment of butter was properly rejected. The testimony was irrelevant and threw no light whatever upon the receipt or failure to receive the bill for the first shipment. If received, it would not have established or tended to establish the fact which was alleged to be the purpose of its introduction. The first and second assignments of error are, therefore, overruled.

As to the admission of the testimony of W. H. Jones in rebuttal, it was entirely within the discretion of the court, and was properly admitted. The denial of the conversations detailed by the defendant’s witnesses on cross-examination in chief was of such conversations as were in the mind of the counsel who conducted the examination. The testimony in rebuttal was a denial of the conversations as they were detailed by the defendant’s witnesses. The defendant suffered in no way by the admission of this denial.

The statements of fact, as contained in the parts of the charge complained of in the fifth and sixth assignments of error are abundantly sustained by the evidence, and were a fair and clear epitome of the evidence in regard to the status of Staples and the transaction conducted by him, as the agent of Jones, with Cleveland.

The answers of the court to the points of the plaintiff and defendant, as complained of in the seventh, eighth, tenth, eleventh, twelfth and thirteenth assignments of error were correct. Cleveland’s acquaintance with Staples and former knowledge of his business, the positive testimony of one of the plaintiff’s witnesses as to the mailing of the bill or invoice of the first consignment of butter, made yet more emphatic by his cross-examination upon the subject, were all facts which were to be considered by the jury, and properly influenced the court in qualifying the points which relate to the knowledge and good faith of Cleveland. The manner in which the court characterized the transaction between Staples and Beemer did the defendant no harm, and was certainly no stronger than the facts warranted. One of the most significant facts in the case, which tended to show collusion between Staples and Beemer, namely, the sending of the money received from Cleveland by the former to the latter, instead of to Jones the owner, was not mentioned by the court.

There was no general assumption by the court that Cleveland had knowledge of or was connected with any fraudulent undertaking to cheat the plaintiff, and nothing in the general charge or in the answers tb points justifies the inference of such assumption. The fourteenth and fifteenth assignments of error are, therefore, also overruled.

The ninth assignment is as follows: “ That there is no proof that the butter, after it was accepted and received by the defendant and appropriated by him, was ever delivered in fact to said Jones or the contract of sale between Jones and Cleveland ever was rescinded and abrogated by the consent of said J ones and Cleveland, nor was there any proof that said butter was ever delivered to said Beemer by Jones or his authority.” It is true that there was no proof that any of the first shipment of butter was ever actually redelivered to Jones, nor was there any proof that any of the butter was ever delivered to Beemer by Jones or by his authority. The rescission of the contract between Jones and Cleveland was a vital point in the case. There was some evidence of such a rescission. It is found in the testimony of Staples, Jones’s agent, who testified that he had called Jones by telephone from Cleveland’s office in Wilkes-Barre, had informed him that Cleveland would not accept the butter and was told by him to dispose of it to the best advantage; in accordance with which instructions he resold the butter as stated by him in other parts of his testimony. If the jury had believed this testimony, they would have been warranted in finding that the contract had been rescinded. There was error, therefore, in affirming that portion of the plaintiff’s third point which stated that “ There is no proof that the contract of sale between J ones and Cleveland ever was rescinded and abrogated by the consent of said Jones and Cleveland.” For this reason, the ninth assignment of error must be sustained.

The judgment is reversed and a new venire awarded.