American Car & Foundry Co. v. Alexandria Water Co.

• Decision Date: 03 June 1907
• Docket Number: 129
• Parties: American Car & Foundry Company, Appellant, v. Alexandria Water Company
• Court: Pennsylvania Supreme Court

67 A. 861

218 Pa. 542

American Car & Foundry Company, Appellant, v. Alexandria Water Company

No. 129

Supreme Court of Pennsylvania

June 3, 1907

Argued April 23, 1907

Appeal, No. 129, Jan. T., 1907, by plaintiff, from judgment of C.P. Huntingdon Co., May T., 1904, No. 23, on verdict for defendant in case of American Car & Foundry Co. Subcontractors, v. Alexandria Water Company, Owner or Reputed Owner, and William M. Powell & Company, Contractors. Reversed.

The facts are stated in the opinion of the Supreme Court.

At the trial when W. F. Lowery, district manager of the plaintiff was on the stand, he was asked on cross-examination, this question:

"Q. Then the contract was made and concluded by you?"

Mr Waite: We object to this examination for the reason that it is not a cross-examination of the witness. We have proved a contract entered into by the witness between William M. Powell & Company and the American Car and Foundry Company, and he was not asked with regard to how that contract came to be made, or whether he communicated with the home office before he entered into it or not. The fact is that contract is now involved in the controversy and it is not cross-examination.

Mr. Bailey: I wish to inquire what the authority of the district manager is and for that reason I wish the jury to understand that the contract was made without conference with the home office; in that light the question is proper.

The Court: Objection overruled. Evidence admitted. Bill of exceptions sealed for plaintiff. [1]

"Q. What did you do with those notes? A. Forwarded them to the treasurer at St. Louis. Q. For what purpose? A. For him to rule on the matter."

Mr. Bailey: It is objected to that what transpired between William F. Lowery and the other officers of the American Car & Foundry Company with regard to those notes is not evidence against the defendant, the Alexandria Water Company, the only question being with what understanding they were received by William F. Lowery, who is a witness in this case, holding the position of district manager of the American Car & Foundry Company, and the American Car & Foundry Company cannot now excuse itself of liability by any juggling of the notes or transmitting them from one officer to another of the American Car & Foundry Company.

2. What occurred between the witness and any other officer of the American Car & Foundry Company is not rebuttal.

The Court: The second objection as to this not being rebuttal is sustained; evidence rejected and bill sealed for the plaintiff. [9]

Mr. William F. Lowery on the stand.

Mr. Waite: I propose to prove by the witness on the stand that when Mr. Mandeville and Abner Smith were at the office at Berwick, Pa., on December 29, 1903, and suggested the giving of promissory notes for the balance due the plaintiff company from William M. Powell & Co., the witness told them that he could do nothing more than receive the notes, and sent them to the home office at St. Louis for approval or rejection by the company; that in pursuance of that conversation a day or two after the notes were sent to him by mail from Hazleton, Pa., signed by William M. Powell & Co., and not in evidence; that he immediately sent those notes to the home office in St. Louis, and that he received a letter in reply thereto from S. S. Delano, the treasurer of the American Car & Foundry Company, which is as follows:

"January 4, 1904.

"MR. WM. F. LOWERY, District Manager, Berwick, Pa.

"Dear Sir: Replying to your favor of the first inst., inclosing three notes signed by Messrs. William M. Powell & Co., covering the account. Before accepting these notes I would thank you to advise me if, under the state laws of Pennsylvania, the time limit for filing builders' lien on the construction into which this material entered has expired. We prefer to see that our interests are legally protected before being forced into accepting these notes.

"S. S. DELANO, Treasurer."

That in reply to this letter William F. Lowery, on January 6, 1904, wrote to S. S. Delano, of St. Louis, the following letter:

"BERWICK, PA., January 6, 1904.

"MR. S. S. DELANO, Treasurer, St. Louis, Mo.

"Dear Sir: I am in receipt of your favor of the 4th instant, account William M. Powell & Co. The law of Pennsylvania requires a notice to be given ninety days from time of furnishing the materials, and the filing of the lien ninety days after such notice, a total of six months from the time of furnishing the materials until the lien itself expires. It is important, however, that the notice be given in ninety days. If you so instruct, I will have our local attorney, Mr. Charles C. Evans, to take care of this feature which would probably give us a good position on the October and November shipments.

(Signed) "WM. F. LOWERY."

To which letter S. S. Delano made the following reply:

"January 23, 1904.

"MR. WILLIAM F. LOWERY, District Manager, Berwick, Pa.

"Dear Sir: Inclosed I beg to hand you the three notes of Messrs. William M. Powell & Co., which were tendered in settlement of their account. Since we have made other arrangements to protect our interests we are forced to return these notes. I will thank you to advise me from time to time as anything develops on this account.

"Yours very truly,

S. S. DELANO, Treasurer."

In reply to which William F. Lowery wrote the following:

"BERWICK, PA., January 26.

"MR. S. S. DELANO, Lincoln Trust Building, St. Louis, Mo.

"Dear Sir: I am in receipt of your favor of the 23d inst. inclosing William M. Powell & Co.'s notes. Owing to the disarrangement of railroad traffic in this region on account of high water and ice gorges, our attorney, C. C. Evans, has been unable to go to Alexandria yet. We have, however, received an acknowledgment of our notice from the treasurer of that company, and Mr. Evans will visit Alexandria the earliest date possible. Pending his return I retain the notes here under his advice, and will communicate with Powell & Co. under our attorney's directions after the visit above referred to.

(Signed) "WILLIAM F. LOWERY."

We also offer in evidence letter written January 1, 1904, in which the following is stated:

"BERWICK, PA., January 1, 1904.

"MR. S. S. DELANO, Treasurer A.M.C. Co., St. Louis, Mo.

"Dear Sir: Referring again to my letter of the 30th, W.M. Powell & Co., I hand you herewith copy of letter from this concern under that date (30th), the three notes therein mentioned and copy of special report from Dunn relative to the concern. I see the notes are written covering interest to maturity, but do not care of the back interest from due date of account to date of the notes themselves. I have not written Messrs. Powell & Co. anything regarding this matter, and will not do so until you have passed upon the facts presented. The mutual acquaintance to whom I have referred says he has been away from Hazleton too long to be in close touch with the movements of Mr. Powell, and, therefore, is not in position to give information of value. Our sales agent will be in Hazleton within a few days, and will study the question from that standpoint. Aside from the fact that the transaction has not been conducted so as to give us legitimate returns from the work into which our material entered, on the surface the account would seem to be good, only slow in adjustment. Awaiting your favor.

(Signed) "WILLIAM F. LOWERY."

This offer is for the purpose:

1. Of corroborating the witness in his testimony with respect to what occurred in the office at Berwick with Mr. Mandeville and Mr. Smith.

2. For the purpose of showing that the witness has no authority or power to enter into such a contract as Mr. Mandeville and Mr. Smith testified to at the time the notes were given. This is to be followed by proof that the witness in all such cases is required by the company to forward to the home office in St. Louis any application or applications, such as were given to the plaintiff company in this case, for the approval or rejection of the treasurer, S. S. Delano.

Mr. Bailey: Counsel for defendants do not object to that part of the offer which proposes to show what occurred between the witness in his office at Berwick, Pa., and Abner Smith and Mr. Mandeville. It is objected, however, that the balance of the offer is immaterial, irrelevant and inadmissible for the following reasons:

1. For the reason that what occurred between William F. Lowery, one of the officers of the American Car & Foundry Company, and other officers, with relation to those notes is utterly immaterial to this issue, it being in evidence that William F. Lowery had authority, and complete authority, to make this contract with William M. Powell & Co., and that he did make it; that they manufactured the materials sent to Alexandria, and the American Car & Foundry Company cannot now seek to escape the consequences of this contract by any secret limitation of the authority of William F. Lowery; they cannot take advantage of the profit derived from this contract, or of this power to make the contract and then repudiate his authority to settle for it.

2. It is not rebuttal. The question of his authority to receive these notes in payment having been ruled upon by your honor in the case in chief.

3. Generally irrelevant and incompetent, and the letters on their face show that they were not all the correspondence, but the letters, together with all the rest of the testimony after the testimony as to what took place at the office at Berwick, is utterly immaterial and irrelevant.

The Court: The conversation which took place between the witness on the stand and with the witness on the part of the defense Abner Smith, is evidence in rebuttal. The balance of the testimony offered is rejected and b...