Ceraline Manufacturing Co. v. Anthracite Beer Co. ( 1904 )

Opinion by

Henderson, J.,

The first and third assignments of error relate to the competency of evidence tending to show that the defendant had not a license to sell liquors in Lackaw;anna county and that, therefore, it was conducting an illegal business in that county, and could not recover damages for loss of sales there. The evidence offered would not establish the conclusion sought. It’does not follow that because the brewing company had no license from the court of quarter sessions of Lackawanna county it could not sell its product in that county. It had the right to accept orders from residents of that county and deliver to the persons so ordering: Commonwealth v. Hess, 148 Pa. 98. There is no presumption that it intended to violate the law with regard to the sale of its product. The uncontradicted evidence shows that it received orders for a large amount of ale from residents of Lackawanna county, and that it was prevented from filling the orders by reason of the attachment issued by the plaintiff. The damages arise not on account of goods sold and delivered legally or illegally, but because of the interference by the plaintiff with proposed sales. For anything appearing in the case, the defendant could have legally delivered its product to the persons who had given orders therefor, as stated by the witness Healey.

The second assignment of error relates to the refusal of the court to admit evidence that the defendant settled with another attaching creditor for damages growing out of the issuing and service of the attachments, the appellant contending that such settlement operated as a release to it from any further claim for damages. Dingee issued the second writ, which was placed in the sheriff’s hands after the appellant’s writ. The attaching creditors gave bonds as required by the act of 1869. They were not tort feasors, therefore, as they were pursuing the remedy given by statute. Their liability in case of the dissolution of the attachment is on their bonds, and, not in tort: Plunkett v. Sauer, 101 Pa. 356. The plaintiff’s liability on the bond was fixed by the dissolution of the attachment. Any damages incurred resulted from the plaintiff’s attachment. The same effect would have been produced on the defendant’s business if the plaintiff’s attachment alone had been issued. The jury was carefully instructed that the damages which they were to consider were those suffered “by reason of the specific attachment mentioned in the bond,” and that it was the duty of the defendant to satisfy them that the damage was from the issuing of the attachment, and not from any other cause. The offer of evidence*did not show or tend to show that the defendant had received any compensation for any damages due from the plaintiff on the bond introduced by way of set-off in this action. The learned judge was therefore correct in rejecting the offer of evidence.

These are the only assignments of error, and, in view of the evidence and the la.w applicable thereto, the case was properly submitted to the jury by the learned court. The assignments of error are overruled and the judgment is affirmed.