American Car & Foundry Co. v. Alexandria Water Co.
| Decision Date | 25 May 1908 |
| Docket Number | 87 |
| Parties | American Car & Foundry Company v. Alexandria Water Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued April 20, 1908
Appeal, No. 87, Jan. T., 1908, by defendant, from judgment of C.P. Huntingdon Co., May T., 1905, No. 23, for plaintiff non obstante veredicto in case of American Car & Foundry Company subcontractor, v. Alexandria Water Company, owner or reputed owner, and William M. Powell & Company, contractor. Affirmed.
Scire facias sur mechanic's lien. Before WOODS, P.J.
Before the trial, W. F. Lowery, who had been served with a subpoena duces tecum, petitioned the court to be relieved from producing certain documents. The court for reasons stated in the opinion of the Supreme Court granted the witness the relief which he sought. [1]
At the trial when Mr. Lowery was on the stand the following request was made:
Mr Bailey: Counsel for defendant is not at present making any offer, he is asking the witness who has been subpoenaed with a duces tecum and who has in obedience to that duces tecum produced in court a list of the persons, firms and corporations with whom he has made contracts during the year 1903; counsel requests the witness, who has been subpoenaed by the defendant, to allow him to see the list of persons with whom he has contracted during the year 1903 so that the witness may be properly examined by counsel for defendant.
Mr. Waite: Plaintiff's counsel objects to the rights of the defendant to go into the private papers and contracts, if there be contracts, of the plaintiff company, with other persons, firms and corporations, and if the gentleman will specify any particular contract or contracts which he desire to have produced and will show how they can become material, then it is a matter for the court to decide whether or not they shall be produced and exhibited.
The Court: Objection sustained. Evidence excluded. Bill of exceptions sealed for defendant. [2]
The facts of the case appear by the opinion of the Supreme Court.
Verdict for defendant. Subsequently the court entered judgment for plaintiff for $10,562.59 non obstante veredicto.
Errors assigned were (1, 2) rulings as to the production of books and documents; (6) in refusing binding instructions for plaintiff; and (9) entering judgment for plaintiff non obstante veredicto.
The assignments of error are all overruled, and the judgment is affirmed.
Thomas F. Bailey, with him Samuel I. Spyker, for appellant. -- We contend that upon the issued joined every contract was as material as every other one. Each would tend to show the authority with which Lowery acted in relation to it. It was utterly impossible for us to designate any particular contract which he had made, and if it had been, any particular contract could in no way have been more material than any other contract: Campbell v. Knowles, 13 Phila. 163; Dexter v. Walker, 7 Pa. C.C. Rep. 274; Phila. v. McManus, 17 Phila. 4.
The Act of April 22, 1905, P.L. 286, was not intended to change the relative functions of court and jury so as to permit the judge to decide questions of conflicting evidence, but only to allow him to do, subsequently, on review of the whole case what it then appeared would have been proper to do by binding direction at the trial: Dalmas v. Kemble, 215 Pa. 410; Bond v. Penna. R.R. Co., 218 Pa. 34; Shannon v. McHenry, 219 Pa. 267.
Even assuming that all the reasons heretofore advanced against the decree entering judgment non obstante are untenable, yet the judgment would have to be reversed for the reason that the court assumed to determine the scope of Lowery's authority as a question of law: Seiple v. Irwin, 30 Pa. 513; Loudon Saving Fund Society v. Bank, 36 Pa. 496; Lamb v. Irwin, 69 Pa. 436; Lerch v. Bard, 153 Pa. 573; Shea v. Quaker City Wheelmen, 9 Pa. Superior Ct. 225; Mange-Wiener Co. v. Patton Worsham Drug. Co., 27 Pa.Super. 315; Swing v. Bates Machine Co., 32 Pa.Super. 403; Singer Mfg. Co. v. Christian, 211 Pa. 534; Williams v. Getty, 31 Pa. 461; Harrington v. Bronson, 161 Pa. 296; Anderson v. Nat. Surety Co., 196 Pa. 289; Empire Implement Mfg. Co. v. Hench, 219 Pa. 135.
H. H. Waite, with him W. H. & J. S. Woods and C. C. Brewster, for appellee.
Before MITCHELL, C.J., FELL, BROWN, POTTER and STEWART, JJ.
This was a scire facias upon a mechanic's lien filed by the American Car & Foundry Company, as subcontractors, against the reservoir and water works and system of the Alexandria Water Company. The right to maintain the lien was sustained by this court, in 215 Pa. 520. A trial was then had under the scire facias which resulted in a verdict for the defendant. Judgment on this verdict was reversed, because of error of the trial judge in permitting certain cross-examination of plaintiff's witness and in rejecting evidence offered by plaintiff, and a venire facias de novo was awarded: American Car & Foundry Co. v. Water Co., 218 Pa. 542. The case was tried again and the verdict was again for the defendant, subject to points of law reserved. A motion for judgment non obstante veredicto was filed by the plaintiff and granted by the court below and judgment was entered for plaintiff for the full amount of the claim with interest. Defendant has appealed.
There was no dispute as to the contracts, the performance of the work, and furnishing materials, nor as to the amount due the claimant. The defendant denied liability, for the alleged reason that the claimants had accepted notes of the contractors in payment of the balance due upon the account, and had, therefore lost the right to file a mechanic's lien.
It appears from the evidence that the Alexandria Water Company contracted with William M. Powell & Company to construct a gravity water system at Alexandria, Huntingdon county, Pa., for $18,000. Powell & Company in turn contracted with the American Car & Foundry Company for the cast iron pipe and specials necessary for the construction of the water plant, for $12,221.20. The water pipe, etc., were furnished according to the contract, and the contractors paid on account of the contract price, $3,649.98, leaving a balance due of $8,571.22, for which the mechanic's lien was filed.
William P. Lowery was district manager for the American Car & Foundry Company, having an office at Berwick, Pa., and the contract with Powell & Company was made by him for his company. The payments on account made by Powell & Company were sent by them directly to the home office of the American Car & Foundry Company at St. Louis, Mo. William M. Powell testified that they remitted to the home office at St. Louis because they were directed on the invoices to do so. Lowery, who was called by defendant as witness, testified that he had power to make contracts within certain lines for his company, but that he had no authority to make collections or to receive notes, checks or money in payment for the sales made by him; that all collections were made from the treasurer's office at St. Louis, and that all invoices were dated as from the home office where payments were to be made. There was no evidence that Lowery had any authority to receive payments either in cash or note for the company, or that he at any time received any payments on its behalf.
It appears from the testimony that in December, 1903, Mr. Mandeville, a member of the firm of Powell & Company, accompanied by a lawyer, Mr. Abner Smith, visited Lowery at his office in Berwick with a view to making settlement of the claim. Mr. Smith testified that Mr. Lowery agreed to accept certain notes, but he refused to say that he agreed to accept them in satisfaction of the claim. His memory was indistinct as to that. Mr. Lowery testified that his understanding was, that the notes were to be tendered for the decision of the company, and that a few days afterwards the notes were given to him, and he sent them to St. Louis for the consideration of the company at the home office. The notes were rejected by the company and returned to Lowery, who turned them over to the attorney of the company, with instructions to proceed to collect the claim. He obtained a judgment as collateral for two of them, and also gave notice and filed the lien upon which this scire facias was issued.
The entire defense rests upon Smith's testimony that the notes were accepted, and the inference which it was strongly urged should be drawn from that fact, that such acceptance was in satisfaction and payment of the indebtedness.
Prior to the trial the defendant served upon Lowery a subpoena duces tecum, commanding him to produce at the trial certain books and papers. It was not specific, but was couched in the most indefinite terms. Thereupon Lowery petitioned the court, setting forth that it would put the plaintiff to a tremendous amount of trouble and expense to produce all the books and papers required by the subpoena; that it would require a number of very large boxes to transport them and that they would then be exposed to destruction, and that he was advised that the greater part of the books and papers were not and could not become material in any way to the issue to be tried, and praying that he might be relieved from compliance with the subpoena. The court granted the prayer of the petition, and confined the production of books and papers to such only as might be shown to be material in the case. This action of the court is made the subject of the first assignment of error.
The learned judge was entirely right in his conclusion. The same reasonable certainty in describing what is required, should be observed in a subpoena duces tecum, as is held necessary in the...
To continue reading
Request your trial