Hoffman v. Gemehl

• Decision Date: 08 March 1920
• Citation: 266 Pa. 498
• Parties: Hoffman <I>v.</I> Gemehl, Appellant.
• Court: Pennsylvania Supreme Court

266 Pa. 498

Hoffman

v. Gemehl, Appellant.

Supreme Court of Pennsylvania.

January 8, 1920.

March 8, 1920.

Argued January 8, 1920.

Appeal, No. 39, Jan. T., 1920, by defendant, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1918, No. 426, on verdict for plaintiff in case of Benjamin F. Hoffman v. Camille Gemehl, trading as American Taxicab Company and also trading as American Garage and Machine Shop.

Before MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ. Affirmed.

George Douglas Hay, with him B. Gordon Bromley, for appellant.—The charge of the court with reference to the nonproduction of defendant's cashbook was misleading and reversible error: Hasson v. Klee, 168 Pa. 510; Geiser Mfg. Co. v. Frankford Twp., 40 Pa. Superior Ct. 97; Lubin Mfg. Co. v. Swaab, 240 Pa. 182; Hall v. Vanderpool, 156 Pa. 152; Green v. Brooks, 215 Pa. 492; Nat. Bank of Coatesville v. Palmer, 56 Pa. Superior Ct. 82; McCall v. Barnheart, 2 Watts 112.

Defendant produced the best and sufficient evidence of part payment; a cashbook with or without the entry would represent evidence but cumulative and of little value: Williamsport v. Citizens Water & Gas Co., 232 Pa. 249; American Mfg. Co. v. S. Morgan Smith Co., 33 Pa. Superior Ct. 469; Hall Co. v. Weaver, 206 Pa. 87; Lee Markee v. Reyburn, 258 Pa. 280; Osterling v. Allegheny N. Co., 260 Pa. 68.

George J. Edwards, Jr., for appellee, was not heard.

OPINION BY MR. JUSTICE KEPHART, March 8, 1920:

On this appeal our consideration is limited to the single question raised by a part of the charge of the court. The action was assumpsit to recover a balance remaining unpaid for automobiles and parts sold to appellant. The defense, as applicable to the question involved, set up an oral agreement, wherein plaintiff, as an inducement to the purchase, agreed to pay defendant a secret discount of three per cent on the sale price. To corroborate the fact that the oral agreement had been made, appellant offered proof to show that appellee had paid in cash $53.55 as a secret discount on the first three cars, and an entry in the cashbook of the receipt of this sum. The bookkeeper and another witness so testified, but the book was not offered in evidence. The bookkeeper thus describes the transaction: "Q. What is the nature of the entry that you made? A. Three per cent commission on three Ford cars. . . . . . Q. Have you the book here? A. I haven't the book here." On motion of counsel for plaintiff the testimony as to the entry on the book was stricken from the record. As affecting this corroborating circumstance, the court charged the jury as follows: "When a matter is referred to [by a witness] which is pertinent and relevant and valuable evidence, if that evidence is not produced in court to corroborate the statements of witnesses, the jury have a right to question in their mind whether or not the book or the paper or the bit of evidence would corroborate the witnesses if it was produced in court. There is no explanation of why the book is not here, and the defendant ought to have explained it. Therefore, to my mind, the evidence to the effect that an entry was made in the book is of very little value." This is assigned as error.

The evidence as to the fact...