Straub Brewing Co. v. Bonistalli & Bisi

• Decision Date: 23 July 1897
• Docket Number: 8-1897
• Citation: 5 Pa.Super. 415
• Parties: Straub Brewing Company v. Bonistalli & Bisi, Appellants
• Court: Pennsylvania Superior Court

5 Pa.Super. 415

Straub Brewing Company v. Bonistalli & Bisi, Appellants

No. 8-1897

Superior Court of Pennsylvania

July 23, 1897

Argued May 7, 1897 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendants, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1894, No. 506, on verdict for plaintiff.

Assumpsit. Before Stowe, P. J.

The facts sufficiently appear from the charge:

These cases require separate consideration, just as much as though they were tried without reference to one another. They all depend, however, upon the one main matter. There is nothing to indicate that the defendants are liable to the plaintiff in any of these cases except as it is based upon an alleged contract made by the plaintiff with Mrs. Bonistalli. According to their testimony, it seems it was made when she was bookkeeper of one of these firms, and not a partner. The contract of a bookkeeper cannot bind a firm, unless it is made with the knowledge and consent of the partnership, or having been made, they have knowledge of the fact and act upon it. Your bookkeeper may make as many contracts connected with your business as he pleases, and you are not bound unless you have knowledge of the fact and acquiesce in it. He has no business to do it unless you give him instructions or authority to do it, but if without instructions he makes a contract and then informs you of it, or the circumstances indicate to the jury, when it comes before a jury, that you had knowledge that such a contract had been made and acted upon it, that would be sufficient to justify the jury in finding that you were responsible upon such a contract.

Mrs. Bonistalli denies that she ever did make such a contract, from first to last. You will remember she was the bookkeeper for the first of these firms, continued bookkeeper for the second firm, and then became a partner and perhaps bookkeeper; at all events, a partner in the last firm. Of course anything she did in the line of business when she was a member of the firm would bind her firm, but it would not have any bearing upon what was done before. [In other words, any contract she had made when she was not a member of the firm would not bind the other firm of which she was bookkeeper, unless the evidence showed reasonably and fairly that the members of the firm knew and acquiesced and acted upon the contract that she had made, in the absence of evidence that she was authorized to make it in the first place, of which there is not a particle in this case. The evidence in this case is of such a character that I cannot myself undertake to say, as a matter of law, that you should not find a verdict against any of the defendants. That is for you to say.] Certainly the testimony is very vague, apart from the contract itself, very vague as to anything that would create a liability upon the part of these defendants.

[There is evidence to show -- which of itself would amount to nothing, unless there was a contract express or implied, made or acted upon -- that the plaintiff demanded of the defendants, from time to time, an account of their kegs or packages], and demanded their return, perhaps intimating directly or indirectly that the defendants were responsible for them. That would amount to nothing of itself. Because I make a claim against you is no evidence that I have one, except as you may act upon that, or your conduct at the time I make the demand may indicate that you acquiesce in it or recognize the fact that the contract was as I claim it to be. I might go to any gentleman upon the street and say I wanted him to pay the thousand dollars he owed me, although I may never have seen the man before. That would be no evidence that he owed me the money, but if he would hesitate and say, I will see you again, or we will settle that hereafter, or do some act indicating that he acquiesced in my suggestion, it would be a matter for the jury to consider, if it came before a jury.

Upon these matters, as I said before, if you believe that Mrs. Bonistalli did not make this contract, then your verdict should be for the defendants clear through, because if this contract was not made by somebody -- and she is the only one that is alleged to have made it -- the plaintiff has no claim whatever. There is nothing to indicate that outside of this contract the defendants were responsible for these packages. It is true they got them; they could not get the beer very well without its being in a package; but where a man buys an article the presumption is the package is his. These witnesses are very clear that it was not understood that the packages were to be the property of the purchaser, but were to be returned. But if there was no contract as to who was to return them, the parties who sold the beer to these defendants would have to look out for the packages themselves. If the defendants saw fit to interest themselves and return them, that was a voluntary act upon their part, and if they did not do it they would not be responsible.

There is, however, another element in these cases that would make whichever of these firms existed at the time the particular act was done, responsible, to say the least of it, for the packages that were used in the way claimed. [There is evidence, whether you believe it or not, that many of these packages were burned and destroyed.] Now, it is clear that they did not belong to the defendants; the evidence is clear throughout that the defendants did not own these packages, whether they were bound to return them or not. They would only be bound to return them by reason of a contract, but whether there was a contract or not, if they undertook to destroy the property of the plaintiff, and burned it up, they would be liable to the extent that they did that. It was the plaintiff's property, and if the defendants used it, or their agents, with their authority or consent, to put pickles in, or burned it, whatever was destroyed or used in that way, they would to that extent be responsible for, but not beyond that unless there was a contract.

I do not see that I can say very much more. There are claims against three firms, one against Frank Bonistalli and Ernest Bisi, commencing on May 2, 1892, and ending August 19, 1892 one against Ernest Bisi, commencing August 25, 1892, and terminating May 1, 1893; and one against Mrs. Bonistalli and Bisi, commencing May 1, 1893, and ending June 1, 1893. If you find a verdict for the plaintiff in any of these cases you will have to try and discriminate how many of these packages were lost or not returned during the existence of each particular partnership. You cannot take the whole...