R. Rothschilds Sons' Co. v. McLaughlin

Opinion by

Beaver, J.,

Whilst it is always more satisfactory to us to have both appellant and appellee represented by counsel and to have, in most cases, written and oral arguments presented for our consideration, we are, nevertheless, enabled to reach a fairly satisfactory understanding of the position of the defendant in this case from the colloquies which occurred between his counsel and the court in the course of the trial below. The first impressions of the trial judge, as the case unfolded in the trial were correct and, if they had been adhered to and embodied in the charge to the jury, it is probable that this case would not have been presented for our consideration.

The plaintiff company and the defendant, on the 14th of January, 1895, in the city of New York, entered into a written agreement in and by which the plaintiff leased to the defendant certain bar fixtures, therein fully described, upon the terms and conditions set forth in the lease. This agreement undoubtedly constitutes a bailment and was so recognized by the court below. It is true that the trial judge speaks of it in his charge as being “ in the nature of a conditional sale between the parties ” but he clearly recognized the true character of the transaction in what follows: “ that is to say, the plaintiff agreed to lease these articles for what they called a rent and, after a certain amount of rent shall be paid, equal to the value of the articles, then the title was to pass to Mr. McLaughlin and not before.” If there were nothing else in the case, the appellant would have little to complain of.

Twenty-two assignments of error are presented for our consideration. The twenty-second is as follows : “ The charge, as a whole, failed to give the jury instructions as to their duty in the case and left them in ignorance of the law applicable thereto.” The discussion of this assignment will practically cover all that need be said in regard to the case. As we remarked in Snyder v. Steinmetz, ante, p. 341, in -which an opinion has been this day filed, quoting McKnight v. Bell, 135 Pa. 358 : “ There is in all eases at law a preliminary question for the court whether there is any evidence of the facts sought to be established that ought reasonably to satisfy the jury; if there is evidence from which the jury can properly find the question for the party on whom rests the burden of proof, it should be submitted. If not, it should be withheld from the jury.”

Was there any evidence in this case which should have been submitted to the jury, from the consideration of which, under any circumstances, they could find for the defendant? The agreement of the parties was in writing, the defendant’s testimony showing that, when executed in the office of the plaintiff in New York, the only persons present were the deféndant himself and the agent of the plaintiff who is the subscribing witness thereto. It would seem also as if the defendant were the only person present, when the memoranda in the agreement, which constitute the description of the fixtures, were made. The effort was made to discredit and set aside the written agreement upon the theory and allegation that the fixtures shipped by the plaintiff to the defendant were not those which he purchased or leased. There was no effort to show that they did not correspond with the description contained in the written agreement. It was, therefore, incumbent upon the defendant at the outset to discredit the agreement which was in writing. This could only be done, under the circumstances, by proof of fraud or mistake. As has been held in very many cases, so familiar to the profession that they need not be recited here, the evidence of fraud or mistake must be sufficient to move the conscience of a chancellor to reform the instrument; that is, as to quantity there must be the testimony of two witnesses or one witness with corroborating circumstances equivalent to a second, and as to quality the evidence must be clear, precise and indubitable. A number of cases relating to this subject are collected in Honesdale Glass Co. v. Storms, 125 Pa. 268. It is scarcely necessary to say, in view of what we have already said on this subject, that it is at least doubtful whether either in quantity or quality the proof in this case came up to the requirements of the law in reference to the contradiction of a written instrument by parol evidence on the ground of fraud or mistake. This goes to the root of the case and should have been distinctly passed upon by the court below, but there is not a word said in the charge in regard to a written agreement nor as to the rules under which it is allowable to contradict it. Nothing is said to the jury as to the measure and quantum of proof required for that purpose. Indeed the case was left to the jury as if the purchase had been made by a parol agreement, and the witnesses were permitted to testify, without reference to the written agreement, that the article shipped by the plaintiff and received by the defendant was not the article purchased.

Even if this had been so, what was the duty of the defendant, when the fixtures were received and the discovery made that they were not what he purchased ? It was clearly his duty, either to refuse to receive the goods ; or, having opened them before the mistake or fraud was discovered, to return them or offer to return them immediately. Instead of doing this, the defendant unpacked the fixtures, set them up in his place of business and used them continuously paying numerous instalments under, the lease, apparently without objection, until the writ of replevin, which is the foundation of this suit, was issued by the plaintiff. The defendant seeks to avoid the discharge of this plain, legal duty by saying that he gave notice to the plaintiff’s agent, his friend and witness, Gray; but there is nothing in the case, except the defendant’s own allegation, that Gray was in any sense the agent of the plaintiff, and his testimony on the subject is very unsatisfactory and indefinite.

The court below failed to give the jury proper instructions as to the duty of the plaintiff in regard to the return or offer to return of the fixtures, when received by him, and did not allude in any way to the measure of proof necessary to establish the agency of Gray. The vital questions in the case were, therefore, entirely overlooked, or disregarded by the court in its charge to the jury and the twenty-second assignment of error, which we have quoted, must be sustained.

It is scarcely necessary to discuss in detail the various assignments of error. Enough has been said to indicate the general principles which should govern in submitting the case to the jury. These principles are fundamental, and if properly observed will doubtless govern in the admission of evidence as well as in the instructions to the jury.

The judgment is reversed and a new venire awarded.