Neely v. Bair's

Opinion by Mb. Chief Justice Stebbett, This case was here before, on appeal from refusal of the court to set aside the judgment of nonsuit, and is reported in 144 Pa. 250. The facts as they were developed on the last trial are fully and correctly stated by the learned judge who presided thereat, and need not now be repeated at length. In substance, plaintiff claimed that, in June, 1884, as administrator of Thomas Neely, he sold and delivered to the defendant John Bair, who died since the trial, certain articles of personal property at prices aggregating $580, which, with interest, less a credit of $69.74, amounted when suit was brought to $698.03. Defend [427] ant admitted having received the property at the prices claimed ; but, by way of confession and avoidance, he averred that he did so “ upon the clear, distinct and express contract and agreement,” between plaintiff and himself, that said price or sum “ should be appropriated and applied to the full payment, satisfaction and extinguishment of the said defendant’s individual account of $510.26 against the said Thomas Neely,” etc. Having thus admitted the delivery of the property to himself, a't the prices claimed by plaintiff, he assumed the burden of proving the contract under which he alleged the same was received. He accordingly introduced testimony tending to prove not only that the contract was made, as claimed by him, but that it was fully executed, with the knowledge and co-operation of the plaintiff, before this suit was brought. More than that, it was also shown, and the jury must have found, that plaintiff, as administrator of Thomas Neely, accounted for the price of said property, and that the same was distributed among the creditors of his intestate; and, also, that the personal account of defendant against said decedent, in which was credited the price of said property, was presented by plaintiff to the auditor charged with said distribution. That statement of account, the correctness of which was then and there admitted by plaintiff, showed a balance of $69.74 in favor of Thomas Neely’s estate. That sum was deducted by the auditor from the account of defendant’s firm, John Bair & Son, against said estate. The individual account of defendant against Thomas Neely, in which was credited the price of the personal property in question, being thus settled and fully paid with plaintiff's knowledge and active co-operation, did not participate in the distribution. After all this was done, this suit was brought by plaintiff to recover the price of said property which, as defendant’s testimony tended to prove, had been previously settled and paid in the manner above stated. This is an outline of defendant’s contention, and his evidence, part of which was the auditor’s report, tended strongly to sustain it. On the other hand, plaintiff contended that there never was any agreement as to how the price of the property in question should be applied, and that it never was applied, with his consent, to the payment of John Bair’s individual account against Thomas Neely. His testimony tended to sustain that conten [428] tion; and thus there was a manifest conflict of testimony on the-controlling facts of the case. That, of course, was a matter exclusively for the jury. The case was submitted to them in a. clear, concise and impartial charge, in which, after referring at considerable length to the testimony, the learned judge instructed them, inter alia, as set forth in the seventeenth specification of error, and refused to affirm either of the nine points for charge-submitted by the plaintiff. His answers to these points are the-subjects of complaint in the eighteenth to the twenty-sixth specifications inclusive. The verdict was for the defendant. That conclusion of the-jury is of course predicated of their finding, in his favor, the-disputed questions of fact, so far at least as they are material according to the court’s view of the law. If it were not for the fact, established by the verdict, that, the contract claimed by the defendant was made and fully executed, and the further undisputed facts, that the price of the-property was fully accounted for and distributed among the-creditors of plaintiff’s intestate, and that defendant’s personal account was excluded from participation in that distribution, there would be some force in the legal position so earnestly contended for by the learned counsel for plaintiff. But in view of the fact that Thomas Neely’s creditors received all they were-entitled to, the only parties who could be considered in the issue-were the plaintiff and defendant. The former was confronted with his contract, in the execution of which he actively cooperated. It follows, therefore, that, ex sequo et bono, he should not be permitted to pocket, in his own right, the price of the-property in controversy. The evidence, as to his action in presenting defendant’s personal account, and inducing the auditor to pass upon the same as he did, presents sufficient ground for estoppel also, but that was neither urged nor acted upon in the-court below. The specifications of error are numerous; but several of them relate to substantially the same questions. The first thirteen are to the admission of defendant’s offers of testimony recited therein respectively. Neither of these specifications is-according to rule and therefore not entitled to notice. But, waiving that, it may be remarked that all the offers are to prove facts bearing more or less directly upon the defence that [429] was interposed; and, from what has already been said as to that, it will be seen that they were not improperly admitted. The fourteenth to sixteenth specifications complain of the rejection of plaintiff’s offers recited therein. The objection was to the leading character of the offers rather than to relevancy or competency of testimony. The court very properly said that the witness should be permitted to state what occurred in the conversation referred to, without having his attention called to any particular matter in the manner proposed. Some latitude of discretion in such matters must always be accorded to the trial judge. There appears to be no error in either of these rulings. Incidental reference has already been made to that part of the learned judge’s charge complained of in the seventeenth specification. An examination of it in connection with the testimony discloses no substantial error. It is a clear and accurate presentation of the case, both as to the facts, which the testimony tends to prove, and the law applicable thereto. It requires no further vindication either by argument or citation of authorities. The remaining nine specifications are to the court’s an- • swers to plaintiff’s points hereinbefore referred to. Considered in connection with the testimony properly before the jury, it would have been error to have affirmed without qualification either of these points as presented. We find no error in either of said answers. Further discussion of the questions intended to be raised by the assignments of error is deemed unnecessary. The case was well and carefully tried, and there appears to be nothing in the record that would justify a reversal of the judgment. Judgment affirmed.