Finkelstein v. Spatt

• Citation: 50 Pa.Super. 293
• Decision Date: 18 July 1912
• Docket Number: 1163-1912
• Parties: Finkelstein v. Spatt, Appellant
• Court: Pennsylvania Superior Court

50 Pa.Super. 293

Finkelstein v. Spatt, Appellant

No. 1163-1912

Superior Court of Pennsylvania

July 18, 1912

Argued March 6, 1912

Appeal by defendant, from order of C.P. Lackawanna Co.-1908, No 1,163, dismissing exceptions to report of referee in case of M. Finkelstein & Sons v. Harry Spatt.

Exceptions to report of C.B. Gardner, Esq., referee. Before O'Neill J.

The opinion of the Superior Court states the case.

Error assigned was in dismissing exceptions to report of referee.

C. B Little, with him Harry Needle, for appellant.

James J. O'Malley, for appellees.

Before Rice, P. J., Henderson, Orlady, Head and Porter, JJ.

OPINION

RICE J.

This action was assumpsit to recover the price of clothing for which the defendant, a retail merchant doing business in Olyphant, Pennsylvania, gave the plaintiffs, manufacturing dealers in New York city, an order, and which the defendant refused to accept from the railroad company on their arrival at Olyphant, but did not return to plaintiffs. The principal defense set up on the trial before the referee, who was appointed under the local Act of April 6, 1869, P. L. 725, and its supplements (4 Stew. P. D. 4069, note e.), was that the package was wrongly marked by plaintiffs in consequence of which it was miscarried to " Oliphant Furnace, Pa.," from which point it was reshipped to Olyphant but, arriving too late for the defendant's fall trade, for which the goods were ordered. This defense involved questions of fact, and was negatived by the referee in his findings of fact, at least so far as the allegations that the box was mismarked and that it was carried to Oliphant Furnace are concerned. He also found affirmatively that the box containing the goods was properly marked and shipped, by way of the Pennsylvania Railroad Company, to the defendant at Olyphant, __ Pa. __, on August 30, 1907, which was within a reasonable time after they were ordered; that they were delayed in transportation so that they did not reach Olyphant until October 8, 1907; that while in transit the box was broken open and three or four pairs of pantaloons were slightly damaged; that the plaintiffs were not responsible for the delay in delivery at Olyphant, and would not have been even if the destination marked on the box had been spelled Oliphant, as claimed by the defendant, instead of Olyphant, as claimed by the plaintiffs. The local reference act of 1869 and its supplements were reviewed and construed, and the jurisdiction of the appellate court thereunder was defined, in Thornton v. Enterprise Ins. Co., 71 Pa. 234. According to this and later decisions under these acts and the general reference act of May 14, 1874, P. L. 166, a referee's findings of fact, which are supported by evidence and which have been approved by the common pleas, have, on appeal (which operates only as a writ of error), the conclusiveness of the special verdict of a jury; and particularly is this true when they depend on oral testimony. To successfully challenge them, it is not enough to point to evidence that would support a different finding. " It must be shown that there is no evidence sufficient to sustain the referee's findings; and this especially so after they have been considered and approved by the court below:" Phila. Company v. United Gas Improvement Co., 180 Pa. 235, 36 A. 742. Here, the referee's findings are supported by evidence and fully warrant the legal conclusion at which he arrived, unless, as defendant claims, the plaintiffs were bound to prove delivery not merely at Olyphant, but at his place of business in Olyphant. This claim...