Wolf v. Solomon

Opinion by

Kephart, J.,

This was a foreign attachment in assumpsit to recover a balance due on cigars sold by plaintiffs nearly six years before suit. The third and fourth assignments of error object to the action of the court in refusing to admit the revenue books in which the defendant had directed the goods to be charged to him. The direction to so charge was contained in a writing at the bottom of an invoice for one bale of tobacco, mailed by the defendant to the plaintiffs. Whatever probative value that direction might be to the plaintiffs in establishing the sale of the cigars to this defendant was contained in this invoice before the court. The revenue book would not furnish additional evidence nor serve to strengthen this fact, as evidenced by the invoice. The direction on the invoice, in the light of the facts in this case, did not conclusively establish contractual relations between the plaintiff and defendant in the sale of these cigars. The invoice contained a charge. of the Cuban American Company against the plaintiffs for this bale of tobacco, and the direction at the bottom to enter in the government records “as purchased from C. Solomon” was not such language as imported an obligation on the part of the defendant to pay for cigars hereafter shipped; at best it was an effort to comply with the revenue laws relating to the sale of tobacco. While the plaintiffs may have appropriated the amount due on the invoice toward a partial liquidation of their account against the Cuban American Company, this appropriation, or payment made by the defendant on account of another, would not make him their debtor for the cigars as here contracted for. These assignments of error are overruled.

The evidence on both sides amply warranted the conclusion reached by the jury that the sale was made to the Cuban American Company and not to the defendant. The cigars had been shipped to the Cuban American Company and the account made out against it and all correspondence in relation thereto was between the plaintiffs and that company. No bill was ever rendered to or demand made on this defendant. The plaintiffs testified, one at a previous trial, and the other at this trial, that in their dealings with the defendant they dealt with him as the representative of the Cuban American Company, a corporation. The suit was against C. Solomon, individually. It was immaterial whether this Cuban American Company was a corporation or a partnership. Its legal existence as a corporation was not in issue, and had it been, the plaintiff could not have complained as to the want of proof when they permitted the defendant, without objection, by his oral testimony, to prove its existence. If the plaintiffs felt that the Cuban American Company was not a corporation and was merely a name used by the defendant to conduct his business, they should have offered some evidence at the trial to prove this fact. The burden was on them to establish, in some manner, the sale of these cigars to the defendant. The case was submitted to the jury on the main points involved, which were decided adversely to the appellants, and the questions were clearly matters for the consideration of the jury. The first, second, fifth and sixth assignments of error must be overruled.

The seventh assignment of error is in violation of Rule XVI of this court, and cannot be considered.

Judgment affirmed at the cost of the appellant.