Anderson v. Long

Opinion by

Oblad y, J.,

The plaintiff is a designer of theatrical costumes, resident of London, England, and the defendant a playwright of Philadelphia. The parties were well known to each other in their respective occupations. The defendant was engaged in the creation of a play, and secured the services of the plaintiff to make the designs for the costumes necessary for its production. A number of letters were exchanged in regard to its general and special nature, its locale, characters, and description of costumes, etc.

On May 5, 1908, Mr. Anderson wrote, “When I know the date I can finish the drawings I will write, and on receipt of the cheque for the work the designs will be dispatched to you immediately.” Mr. Anderson declined to forward the plates until he received the draft covering their value. On April 18, 1910, Mr. Anderson assigned his claim against Long to David It. Perkinpine of Philadelphia, and this action was begun. The title of the case was amended during the trial to read “Percy Anderson to the use of David It. Perkinpine” by leave of court. A trial before the court and a jury was had, and after four days resulted in a verdict in favor of the plaintiff for $1,051.95.

The assignment of the claim was specific “for good, valuable and adequate consideration by me received.” There was no allegation of fraud, and whether this right passed by assignment to the equitable plaintiff is a question that did not concern the defendant, a verdict and judgment for either party, as the record stands would be a bar to any further action against him on this claim: Sentinel Printing Co. v. Long, 28 Pa. Superior Ct. 608. The use plaintiff took no better right of action than Percy Anderson had, and all defenses that could be urged against him, applied with equal force to Perkinpine. The defendant was not deprived of any right) and the court admitted the testimony of the use plaintiff, as to the consideration of the assignment so that the jury had possession of all the facts of that branch of the case. By the court’s qualification of the defendant’s first point for charge, the defendant had the full benefit of the defendant’s asserted right to challenge the assignment. It did not change either party’s legal right nor involve any new issue.

A rule for a commission was taken by plaintiff October 6, 1911, when interrogations were filed. To these the defendant filed exceptions, and after a hearing thereon, an interrogatory was modified, then cross interrogatories were filed by the defendant, and after a number of orders made by the court, the commission was issued, returned and opened on September 25, 1912, to which exceptions were filed and after hearing these were dismissed.

Counsel for both parties kept in close touch with this part of the proceeding. On April 11,1913, demand by the defendant was made of plaintiff’s counsel to produce Mr. Anderson at the trial for cross-examination, but this was manifestly too late in time as the case was on the trial list for May 5, and Mr. Anderson was in London, England. Moreover, the defendant could have issued his own commission at any time after September 25, 1912, if the subject-matter had not been fully covered to meet his views of the testimony. Section 8, of the Act of May 23, 1887, P. L. 158, provides: “That in any civil proceeding, the testimony of any competent witness may be taken by commission or deposition in accordance with the laws of the commonwealth and the rules of the proper court.” And rule ,15, paragraph 7, of the Philadelphia court rules, is as follows: “A rule for a commission to any of the United States, or to foreign parts, is also of course, but the interrogatories must be filed in the prothonotary’s office at the time, and written notice of the rule, and the names of commissioners must be served on the adverse party at least fifteen days before the commission issues in order that he may file cross interrogatories or nominate commissioners on his part.”

No objection was made to the suggested commission or to the interrogatories, after the original exceptions thereto had been disposed of by the' court. On its return by mail service, it was found to be stamped “Supposed liable to customs duties” when a deputy prothonotary attended the opening of the sealed package, no. as to permit an examination of the contents by customs officers and determine if any article subject to customs duty was included. This was in exact accordance with sec. 9, of rule 15, viz: “On the return of any commission .... the same may be opened by the prothonotary or his deputy, who shall mark upon the envelope and commission .... his name and the date of opening and filing, and shall give notice to the parties.” Inspection of the deposition clearly shows, “Percy Anderson being duly sworn and examined on' the part of the plaintiff doth depose and say” on the date given, before a named notary public at the place indicated, under the authority given him by the commission, etc. All the requirements of a properly executed oath are present in the certificate of the deposition, each page of which is attested by the witness and commissioner: Clarke v. Benford, 22 Pa. 353. If there is any ambiguity in the answer to some of the interrogatories, it is likely due to the involved character of the cross interrogatories, but a fair examination of them indicates that the witness intended to fully comply with the requirements of the lalw, except as to those which applied to conversations had with and letters received from his London solicitor, which were had and received after this suit was instituted, and were properly held to be confidential communications and not relevant. There is no suggestion of evasion or desire to conceal any material fact in the examination of the witness. The court acted clearly within its discretion in overruling the objections and admitting the testimony. When a matter is within the discretion of ¡ the court and the substance of a rule of court is observed, a departure by the court from the form of the rulé is immaterial. Logan’s Assigned Est., 213 Pa. 218; International Coal Min. Co. v. Railroad Co., 214 Pa. 469; Shannon v. Castner, 21 Pa. Superior Ct. 294.

The appellant states the prominent defense to be that Percy Anderson had not performed his contract and the designs were not in compliance with the directions of the defendant, and that an inspection of the plates disclosed this failure to comply with the instructions given. The. conditions of the contract are to be gathered from the letters passing between the parties, but on the trial an entirely new feature was added. The written instructions given by Long to Anderson were quite meager and indefinite, and much was left to the designer, to present the thought of the play. This view is apparent from the letters. Anderson writes “I think I grasp your ideas sufficiently to make the drawings as you wish them to be.” He never saw the manuscript of the play. He received a general description of the costumes of five participants and these — as testified to by defendant’s expert witnesses — were of the type suggested by the description given, but entirely different from the national peculiarities of the characters presented. Long wrote, “Use‘your own inventions. Yes, the- play is poetical and a bit fanciful. I do not think the designs will be hurt a bit if this feeling does, creep into them. I here add some details of each, more in the way of suggestion than anything else, preferring to leave you' to be original. The play calls for seven or eight smart Viennese men and women in hunting things and so on. I am running this off merely to get you into the spirit of the thing. — There are a number of other smart women in the play who I suppose should wear modern clothes. The wanton should be somewhat overdressed, yet in an artistic fashion. She should be a big woman, suggesting a bit the gipsy. The beggar-student is a very picturesque youth — there will be priests, acolytes, nuns, officers, a crowd — two brides, with thirty differently colored petticoats apiece on them. The locale of the play will be modern Hungary — but there will be about it all a remoteness, such for instance, as is found in the less accessible parts of the kingdom. The story begins and ends in an ancient convent of a peculiar foundation.” The above excerpts are taken from the letters of the parties, showing the indefinite description given of the characters and their costumes, and the wide scope given to the designer. An exact, literal compliance with such an order would be impossible as the mind of the author seems to be in as much doubt as to the mounting of this play as his written description of its materials.

On the other hand, there was no promise by Mr. Anderson that his work should meet the criticism of Mr. Long or his friend. He accepted the employment upon specific terms. “I may charge you as little as one hundred and fifty pounds — in any case not more than two hundred pounds,” and, as before quoted, “When I know the date I can finish the drawings I will write and on receipt of the cheque for the work the designs will be shipped to you immediately.” In response to this Mr. Long wrote, “Your terms are satisfactory and I will see that a bill of exchange is sent to you as soon as you let me know that the plates are ready, and then I will tell you how to ship them. ” On May 22,1908, Mr. Anderson wrote, “The designs for your play will be completed the first day of June, and the price for them will be one hundred and sixty guineas (equal to 168 pounds), on hearing from you I will at once forward the designs.” To this Mr. Long answered, “All right, dear Mr. Anderson, and thank you for the work in advance. I am sending your letter on to Mrs. Carter, who is on tour, who will sent you your draft and direct you how to ship the designs.”

On the trial, Mr. Long admitted that he had never demanded an inspection of the plates prior to bringing this suit, or of a delivery of them to him. He made no offer of payment or explanation, further than that he had an understanding of some undisclosed character with Mrs. Leslie Carter, who, he stated, “Was mad to send you your draft and have the plates.” Nowhere in the contract is found any suggestions that they were to be paid for on approval of Mrs. Carter, or on delivery to Mr. Long. The price was due and payable when they were completed by Mr. Anderson, and on the trial there was a mass of evidence received under objection from the plaintiff that was irrelevant — of this the plaintiff does not complain, because, despite its admission, he recovered his verdict and the defendant had the advantage of it with the jury.

There was nothing in the writings to suggest that Mr. Long was acting for an undisclosed principal. No name is mentioned other than his own. He writes, “The contents of your letter are satisfactory to me. I will see that a bill of exchange is sent to you — then I will tell you how to ship them.” It was his play, the designs were to be sent to him, he negotiated on his own responsibility. Having entered into the contract in his own name, without disclosing the identity of any principal, he rendered himself personally liable.

The case was carefully conducted by able and zealous counsel, and while the defendant was given much wider range than he was entitled to, the verdict is fully warranted by the plaintiff’s proofs, which were rightfully received. The charge of the court was adequate, and clearly presented the conflicting evidence in a way that the jury understood the facts. We discover no reversible error in the record and all the assignments are overruled and the judgment is affirmed.