Christner v. John

Opinion by

Rige, P. J.,

We think the learned judge below took an entirely correct view of tins case when he said that the main question was, whether, notwithstanding the misdirection, the lumber was delivered to the proper party. Upon the facts supposed in the instructions which are the subject of the first assignment of error, and in the plaintiff’s point, the affirmance of which is the subject of the second assignment of error, the plaintiff’s mistake in directing the consignment to “ the Connellsville Coke Company, Leisenring, Pa.,” instead of to the “ Coke Company of Connellsville, end of track, Leisenring,' Pa.,” was harmless. Upon these facts the defendant could recover from the Coke Company of Connellsville and there is no reason why upon the same facts the plaintiff should not be permitted to recover from the defendant. It is suggested in the appellant’s history of the case and brief of argument that the Coke Company of Connellsville has become a defunct corporation and therefore the claim is uncollectible; also, that on a former trial of tins case, in which a verdict was rendered for the defendant, the plaintiff produced no evidence to show that the lumber had been actually received by the above mentioned company.

It is not clear how these facts would affect the question of the defendant’s liability to the plaintiff, except, possibly, because they would furnish a reason for not going behind the alleged settlement between them. But be that as it may, it is sufficient to say without discussing their relevancy that they are not shown by the record of the evidence before us. We have no means of knowing what was proved on the former trial or what were the reasons for granting a new trial, and we have looked through the evidence in vain for proof that the Coke Co. of Connellsville is a defunct or an insolvent corporation. Taking the record as it is presented to us, it seems too plain for argument, that if the lumber was actually delivered to the person and at the place ordered there is no legal reason why either the plaintiff or the defendant should suffer loss, and therefore no room for the application of the maxim that the loss which must fall on one of two innocent persons must be borne by him whose accident or mistake was the cause of it.

The third assignment of error raises a question as to the sufficiency of the evidence of an actual delivery of the lumber to the person and at the place ordered. The question is not what conclusions we would have reached if it were our province to find the facts, but whether there was evidence from which a jury might find the fact. As it was our duty to do we have carefully examined the evidence with reference to this question, and are of opinion that there was more than a mere scintilla and therefore it would have been error for the court to take the case from the jury.

In the absence of proof that the car load of lumber was actually delivered to the Coke Co. of Connellsville the defendant’s second point might have been well taken. But if the company actually received the lumber how could the misdirection be set up by it as a reason for not paying ? As the learned judge well says, in that case the mistake was harmless, and did not afford a shadow of ground to the consignee to refuse payment. His answer to the point was full, clear and accurate, and we can add nothing in vindication of its correctness.

Undoubtedly as the appellant’s counsel argue, the parties had a right to adjust their own disputes, and any settlement that they made with knowledge of the fact would bind them. But a settlement of their accounts whereby the price of the carload of lumber was charged back to the plaintiff under the mistaken belief of both parties that it had been lost, when in fact it had not been, but had gone to its proper destination, ought not to defeat the action. The question whether there was such mutual mistake in the alleged settlement was one for the jury, and was properly submitted.

All of the assignments of error relate to the charge of the court and might have been dismissed, upon the ground that when the appeal was heard the record showed neither an exception to the charge of the court nor that the copy filed was-approved by the judge or filed by his direction. The place of these cannot be supplied by a general rule of court, or a general practice of the judge to direct exceptions to be noted for both parties: Com. v. Arnold, 161 Pa. 320; Pool v. White, 171 Pa. 500. The practice referred to is evidently followed by the judge in order to prevent the consequences of the possible forgetfulness or oversight of counsel, but we question whether as a matter of general practice he should assume the responsibility of noting exceptions to his charge or to his other rulings, unless he is expressly requested so to do. After the case was argued before us a certificate of the judge was filed, setting forth that “ it having come to the knowledge of the court that the record does not show that an exception was noted at the time of the trial to the charge of the court, and the impression of the court being that the stenographer was directed at the time to note an exception to the charge to counsel for both parties, and from the further fact that the court has been in the uniform habit of directing the stenographer to note exceptions to persons on both sides at the close of his charges, the court now orders and directs that an exception to the charge as filed, and as it now appears in the paper-book in the case now pending in the Superior Court, be noted to the counsel for defendant and a bill sealed nunc pro tunc.”

We do not question the authority of the court to correct the record in accordance with the fact, and if as matter of fact an exception was taken a,t the trial, which by mistake was not noted, it was proper for the court to direct it to be done nunc pro tunc. But according to strict practice, the appellee was entitled to have the casp disposed of in this court upon the record as it stood at the time the appeal was heard; especially was this so in this case, because the appellant had notice of the alleged defect in the record, and ample opportunity to have it corrected long before the appeal came on for argument. But we will not press that objection to a consideration of the assignments of error as we find nothing in them calling for reversal.

The judgment is affirmed.