Neely v. Bair

• Decision Date: 05 October 1891
• Docket Number: 425
• Citation: 22 A. 673,144 Pa. 250
• Parties: JOHN NEELY v. JOHN BAIR
• Court: Pennsylvania Supreme Court

22 A. 673

144 Pa. 250

JOHN NEELY v. JOHN BAIR

No. 425

Supreme Court of Pennsylvania

October 5, 1891

Argued May 20, 1891

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF YORK COUNTY.

No. 425 January Term 1891, Sup. Ct.; court below, No. 56 August Term 1889, C.P.

On June 18, 1890, John Neely brought assumpsit against John Bair filing, on August 13th, a statement of claim in substance averring:

That on June 26, 1884, the plaintiff, as administrator of Thomas Neely, deceased, sold and delivered to the defendant one black horse, of the price and value of $425; and one top wagon or buggy, one buggy tongue, and one set of double harness, together of the price and value of $155; that these said prices for the said property were the prices agreed upon between the plaintiff and defendant at the time of the sale and delivery thereof; that the defendant, though legally bound to pay the plaintiff the said sums, had not paid the same, except the sum of $69.74 paid by him on August 12 1890, and that there were no items of credit to which the defendant was entitled, except as above stated. Said statement of claim was verified by the plaintiff's affidavit, and on August 13, 1890, was served upon the defendant's attorneys then of record, under the rule of court relating thereto.

On August 25, 1890, the defendant filed an affidavit of defence in which it was averred that the defendant had a just, legal and complete defence to the whole of the plaintiff's claim, the nature and character of which was in substance as follows:

That the said Thomas Neely, at the time of his death, to wit, on May 30, 1884, was indebted to the defendant in the sum of $510.26; that, after the death of said Thomas Neely, the property set out in the statement of claim, being part of the estate of said Thomas Neely, came into the possession of the administrators of the said estate; that on June 26, 1884 John Neely, the plaintiff, one of the said administrators, sold the said property to the defendant for the prices set forth in the statement, upon the express contract and agreement that the purchase money therefor should be applied to the full payment, satisfaction and extinguishment of defendant's said individual account of $510.26 against the said Thomas Neely, and that the defendant should pay to the plaintiff the difference between said account and the amount of said purchase money, to wit, $69.74, which said difference was paid by the defendant to the said plaintiff before the bringing of this suit; that when the defendant received the said property from the plaintiff, he at once entered a credit for the amount of the purchase money, thereby fully extinguishing said account, and that when the said suit was brought the defendant did not owe nor was he indebted to the plaintiff, either individually or as one of the administrators of said Thomas Neely, for said property or any portion thereof.

The rule of court, and portions of the statement of claim and affidavit of defence, are quoted in the opinion of the Supreme Court.

At the trial on February 2, 1891, under the pleas, non-assumpsit, payment, set-off, and the statute of limitations, the plaintiff offered the statement of claim and proof of service thereof in evidence. The offer was objected to, on the special ground that it was not accompanied by an offer of the affidavit of defence, which was necessary that the court might determine what material averments of the statement were denied by the defendant.

The plaintiff then offered the affidavit of defence in connection with the plaintiff's statement, for the purpose of showing that the defendant had not denied "the sale, or price of the goods sold." Objected to.

By the court: It is not contended that there is any other affidavit filed, except the affidavit of defence. It appearing from the affidavit of defence, just offered in evidence in connection with the offer first made, that the material matters set forth in the plaintiff's statement entitling him to recover in the case, are sufficiently denied to put the plaintiff upon proof, the offer is overruled and excluded; exception.

The plaintiff making no further offers of evidence, on motion of defendant's counsel, the court, BITTENGER, J., entered a judgment of nonsuit, with leave, etc.

A rule to show cause why the judgment of nonsuit should not be lifted having been argued, the court, LATIMER, P.J., and BITTENGER, J., concurred in an opinion filed in part as follows:

We have carefully heard and considered this application, and adhere to the opinion that the court was right in its action in ordering the judgment of nonsuit to be entered, for the following reasons:

1. The affidavit of defence is a substantial denial of the specific averments of fact, set out in the plaintiff's statement and affidavit. The affidavit of defence, in substance, alleges the receipt of the personal property described in the statement, and for the recovery of the value of which this suit is brought, in payment of a debt due the defendant by Thomas Neely, deceased, at the time of his death, on an agreement with the plaintiff who was the administrator of said Thomas Neely, deceased. The defendant further swears that he "does not owe and is not indebted to said John Neely, either individually, or as one of the administrators of said Thomas Neely, deceased, for said horse, buggy, buggy tongue and set of harness, or for any of said several pieces of property, or for the purchase money therefor, or for any part or portion thereof."

The defendant denies the existence of the contract on which the plaintiff claims the right to recover by suing individually, and disclaiming as administrator of Thomas Neely, deceased. The defendant denies in said affidavit any indebtedness to the plaintiff, either as an individual or in his representative capacity, for the goods described in the statement. He furthermore asserts a payment by the administrator of said Thomas Neely, deceased, in kind, by these goods, of the debt due by the plaintiff's intestate, at the time of his decease, to the defendant, and a credit of said payment on his book-account evidencing said indebtedness.

This affidavit of defendant is full and strong enough, and sufficient in law, to prevent the admission in evidence of the plaintiff's statement under the rule of the court: McCloy v. Maffett, 59 Pa. 344; Hultz v. Gibbs, 66 Pa. 360; Thorne v. Insurance Co., 80 Pa. 15; Kaiser v. Fendrick, 98 Pa. 528; Corcoran v. Trich, 20 W.N. 372; Kountz v. Oil Ref. Co., 72 Pa. 392.

2. The only matter of substance contained in the plaintiff's statement, not denied in the defendant's affidavit, was the receipt by the defendant from the plaintiff, of the property described in the statement, and the price of the same. The entire statement and plaintiff's affidavit, with the affidavit of service, and affidavit of defence, were embraced in one offer. A plaintiff's statement or narr cannot be a proper instrument of evidence in his behalf. Certainly, these portions of the statement material to the plaintiff's case, the truth of which was denied by the defendant, under the rule were not admissible: Kaiser v. Fendrick, supra. The offer as a whole could not be admitted, and was properly excluded. The court is not bound, when an offer is objected to, to separate the part admissible from that which is inadmissible: Smith v. Arsenal Bank, 104 Pa. 518.

3. If the offer had been admitted as made, and the plaintiff rested, as his counsel proposed, he would have proved by the affidavit of defence, included in the offer, that he was not entitled to recover, and the court would, on motion being made by defendant's counsel, have been constrained to order a judgment of nonsuit: Pittsb. etc. R. Co. v. Gazzam, 32 Pa. 340.

If the plaintiff shall suffer a hardship by reason of the judgment of the court, it is his own fault. He was present at the trial, sitting by his counsel at the counsel table. All the facts sworn to by him in his statement, which he struggled to have admitted in evidence, were in his mind and knowledge. Both the plaintiff and his counsel had ample notice of the exclusion of his offer of evidence under the objection of defendant's counsel, and the pendency of a motion for judgment of nonsuit, yet the plaintiff did not take the witness stand or give any competent evidence to sustain his claim and action. He did not even give any reason for his failure to do so.

And now, February 19, 1891, the motion to set aside the judgment of nonsuit in this case is overruled; exception.

Thereupon, the plaintiff took this appeal and assigned for error:

1. The refusal of the plaintiff's offer.

2. The refusal to lift the judgment of nonsuit.

Judgment reversed, and procedendo awarded.

Mr. H. C. Niles (with him Mr. W. F. Bay Stewart and Mr. George E. Neff), for the appellant.

Counsel cited: § 3, act of May 25, 1887, P.L. 271; Wickersham v. Russell, 51 Pa. 71; Schupp v. Schupp, 17 W.N. 236; Endlich on Aff. of D., § 359; Bowen v. De Lattre, 6 Wh. 429; Kauffelt v. Leber, 9 W. & S. 93; Grier v. Huston, 8 S. & R. 401; Wolfersberger v. Bucher, 10 S. & R. 10; Stephens v. Cotterell, 99 Pa. 188; Steel v. Steel, 12 Pa. 64; Singerly v. Swain, 33 Pa. 102; Harris v. Dennis, 1 S. & R. 236.

Mr. N. M. Wanner (with him Mr. Cochran and Mr. Williams), for the appellee.

Counsel cited: Kountz v. Oil Ref. Co., 72 Pa. 396; Hultz v. Gibbs, 66 Pa. 362; Thorne v. Insurance Co., 80 Pa. 15; Kaiser v. Fendrick, 98 Pa. 528; Corcoran v. Trich, 20 W.N. 372; Smith v. Arsenal Bank, 104 Pa. 521.

Before PAXSON, C.J., STERRETT, GREEN, CLARK, WILLIAMS, McCOLLUM and MITCHEL...