Little v. Fairchild

• Decision Date: 23 March 1899
• Docket Number: 17-1899
• Citation: 10 Pa.Super. 211
• Parties: William Little, Administrator of George S. Barker, deceased, v. A. C. Fairchild and George Grace, Appellants
• Court: Pennsylvania Superior Court

10 Pa.Super. 211

William Little, Administrator of George S. Barker, deceased, v. A. C. Fairchild and George Grace, Appellants

No. 17-1899

Superior Court of Pennsylvania

March 23, 1899

Argued January 17, 1899 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendants, from judgment of C. P. Bradford Co.-1893, No. 172, on verdict for plaintiff.

Assumpsit. Before Dunham, P. J., of the 44th judicial district, specially presiding.

It appears from the record that this was an action of assumpsit brought by George S. Barker on September 29, 1893, to recover for certain onions sold to the firm of Fairchild, Grace & Co. The firm consisted of several partners, to wit: A.C. Fairchild, V. W. Grace, George Grace and S. G. Dye. Service was had upon A.C. Fairchild and George Grace. Judgment was originally entered for want of a sufficient affidavit of defense and appeal was taken to the Supreme Court where the judgment was reversed (see Barker v. Fairchild, 168 Pa. 246). After the return of the record George S. Barker having died, his death was suggested and William Little, administrator, was substituted as plaintiff. Subsequently said administrator obtained leave and amended the statement of claim filed as follows: [Now, February 2, 1897, the plaintiff is permitted to amend his statement of claim in the above case by adding after the words, " on the 31st day of October, A.D. 1891," the words, " or within six years before bringing this suit." ]

It appears from the evidence that answers to interrogatories taken by depositions under commission, by Andrew Wilson, John T. McEntire and George S. Barker, were permitted to be read to the jury under objection of defendants' counsel, these answers tending to show a sale of the onions, the price of which was sued for, to the firm of which defendants were members and the admission of these answers were the subject of exceptions two to eight inclusive.

The following interrogatories and answers are specifically set out:

[4. Did you know George S. Barker in his lifetime, and do you know of his having business transactions with said firm, and how did you acquire such knowledge? Answer: I knew George S. Barker in his lifetime, and knew of his having business with said defendant firm. I was with him about the first week in October, 1891, when he sold to said firm something over 20,000 pounds of onions. I was also present with both said George S. Barker and members of said firm after the delivery of the onions, on several occasions, when they acknowledged having received said lot of onions, and that they had not paid for them.]

[6. Do you know of George S. Barker having from said defendant any paper or writing, showing the purchase by them from him of any onions; and did you see any member of said firm make said writing or any part thereof, and what part? Answer: I know said George S. Barker had from said defendant firm a paper showing in writing the purchase by them from him of about $ 190 worth of onions. I was present when said George S. Barker had Mr. W. Grace " O. K." the same; also when Mr. S. G. Dye wrote the word " correct" followed by his initials upon it.]

[7. Can you identify said paper now, and is this paper now shown you, and marked exhibit " A., M. L. J.," the one you refer to? If so, have the commissioner attach same to your depositions. Answer: The paper shown me by the commissioner, marked exhibit " A., M. L. J.," is exactly like the one I saw in said George S. Barker's possession, being the one on which I saw S. G. Dye write the word " correct" and his initials. The word " correct" and said initials on the paper now shown me is in Samuel G. Dye's handwriting, and the rest appears to be in the handwriting of V. W. Grace, and I believe I can safely say that this is the identical paper which said George S. Barker received from said firm; being fully satisfied of that fact, I hand said paper to the commissioner to be attached to this deposition.]

[8. Do you know or can you set forth any other matter or thing which may be of benefit or advantage to the parties at issue in this case, or either of them, or that may be material to the subject of this your examination, or the matter in question in this cause? If so, set forth the same fully and at large in your answer. Answer: I can only say that I heard both V. W. Grace and S. G. Dye repeatedly admit the indebtedness sued on in this case. They also told said George S. Barker and my self on several occasions that the same was an honest debt, and that Mr. A.C. Fairchild of Towanda, __ Pa. __, was a member of said firm, and was amply good for it.]

The court admitted in evidence, under objection of defendant, the paper marked " Exhibit A," which is as follows:

[" G. S. Barker:

" 23,908 pounds Onions @ 80, $ 189.65.

" 10 -- 31 -- S. G. D. This is O. K.

" V. W. G.

" Correct.

" S. G. D." ]

The court admitted in evidence the answer of John T. McEntire to the sixth interrogatory as follows:

6. Are you familiar with the handwriting of any of said firm; and if so, in whose handwriting is said paper, or any parts thereof? Answer: Yes, I am familiar with the handwriting of V. W. Grace. All of the handwriting on the slip now shown me by the commissioner, marked exhibit " A., M. L. J.," is in V. W. Grace's handwriting, except the words " Correct, S. G. D." at the end thereof.]

The court charged the jury, inter alia, as follows:

[The case you have been sworn to try is that of William Little, administrator of the estate of George S. Barker against A.C. Fairchild, V. W. Grace, George Grace and S. G. Dye, late partners trading as Fairchild, Grace & Co.] . . . .

[On the part of the plaintiffs they claim that in the month of October or, as it was placed in their first statement, on the 31st day of October, 1891, they delivered to the defendants 23,908 pounds of onions, at the price of eighty cents a hundred. In support of their claim they have introduced the evidence of three different persons, one of whom testifies that he saw Mr. Barker in his lifetime deliver to the defendants over 20,000 pounds of onions.] . . . .

[There is another witness, however, who testifies that he was present when members of the firm of Fairchild, Grace & Co., delivered to Mr. Barker, the original plaintiff in the case, a memorandum of onions that the firm had bought of Mr. Barker, and they have attached to the deposition a memorandum which he swears, in his opinion, is the memorandum that he saw delivered to Mr. Barker by Mr. Grace and by Mr. Dye. . . . And he swears that he believes that to be the paper that was given by these defendants to Mr. Barker as a statement of the onions that they had bought.]

Verdict and judgment for plaintiff for $ 250.72. Defendants appealed.

Errors assigned among others were in allowing amendment to plaintiff's statement, reciting same. In admitting answers to interrogatories to be read in evidence, reciting same. In admitting in evidence paper marked exhibit " A," reciting same. To portions of the judge's charge, reciting same. Refusing binding instructions for defendants.

Affirmed.

Rodney A. Mercur, for appellants. -- This action in assumpsit is and was brought to recover an alleged debt founded on a book account, and the plaintiff particularly specified the date of the said account, to wit: " October 31, 1891."

Justice Fell in rendering the opinion in Barker v. Fairchild, 168 Pa. 246, says, " If the sale was on some other date the defendants were not liable under the statement filed. At a trial no recovery could be had against them without an amendment."

The act of 1887 requires " a concise statement" and the act of 1806 requires " a statement of . . . . demand . . . . particularly specifying the date of the . . . . book account," etc.

Can it be said that a statement of claim to recover for goods sold and delivered where the date is uncertain and is particularly declared to be in the alternative, is " a concise statement?" Fortunately our appellate courts have declared repeatedly that a statement must exhibit a complete cause of action, in such clear, express and unequivocal language, that if the material averments are not denied by the defendant, a judgment in default may be entered and liquidated.

So it was declared in Byrne v. Hayden, 124 Pa. 170. The next case in point of time is Fritz v. Hathaway, 135 Pa. 274. Both of these cases were followed in Newbold v. Pennock, 154 Pa. 591, and Winkleblake v. Van Dyke, 161 Pa. 5. Then follows the case of Bank v. Ellis, 161 Pa. 241.

Fritz v. Hathaway, supra, was followed in Murphy v. Taylor, 173 Pa. 317; Bank v. Ellis, supra, was followed in Peale v. Addicks, 174 Pa. 543; and both the Byrne and Ellis cases were followed in the recent one of Acme Mfg. Co. v. Reed, 181 Pa. 382. This court has expressly followed Fritz v. Hathaway, supra, in several cases, and among them, Hutton v. McLaughlin, 1 Pa.Super. 642, and both are followed in Close v. Hancock, 3 Pa.Super. 207, Byrne v. Hayden, supra, in Clements v. Dempsey, 7 Pa.Super. 52, Bank v. Ellis, supra, in Louchheim v. Maguire, 6 Pa.Super. 635, and in the recent case of Clark v. Lindsay, 7 Pa.Super. 43.

The plaintiff does not recover on the proofs alone; he recovers secundum allegata et probata.

In a long line of cases, commencing with Farmers' & Mechanics' Bank v. Israel, 6 S. & R. 293, where it was held " the court will not permit a declaration to be amended by the introduction of a new, and entirely different, cause of action from that originally set forth."

The learned court erroneously charged the jury (ninth assignment) that the case they were sworn to try was " against A.C Fairchild, V. W. Grace, George Grace and S. G. Dye, late partners...