Shaw v. Fleming

Opinion by Mr. Justice McCollum, It is not necessary to consider separately the fifteen specifications of error filed in this case. When it was here before, Shaw v. Fleming, 148 Pa. 104, we held that as it was an action for the price of yarn sold and delivered, it was essential to a recovery by the plaintiffs that they prove a sale and delivery of the yarn in accordance with their claim. We also held that “ the evidence of what passed between them and Brook respecting the quality of the yam, and their responsibility to him for a loss, was admissible on the question whether Brook or Fleming was their vendee, but that it was not sufficient to relieve the latter from his obligation to pay for the yarn if he was the purchaser of it,” and further that the loss Brook sustained by reason of the alleged inferior quality of the yarn was not available as a set-off in or defense to the action. It was because of the rulings of the learned court below, adverse to these views, that the judgment was reversed and a new trial was ordered. The case now comes to us on the appeal of the same parties from a judgment recovered on a trial in which the objectionable rulings referred to have no part. While the result on the first trial was the same as on the last, it may have been due on the former to either of the rulings that were adjudged to be erroneous, or to a finding by the jury that the defendant was not a purchaser of the yarn. It is reasonably certain however that the judgment now appealed from is based upon a finding in accord with the defendant’s contention that the plaintiffs did not sell to him the yarn they delivered to Brook and for the price of which they brought this suit. The evidence to warrant such a finding was ample and the instructions in regard to it were impartial and clear. On the first trial as on the last the plaintiffs submitted a point to the effect that the bills they rendered to the defendant became, by his failure to object to them, accounts stated, and estopped him from denying that he was a purchaser of the yarn. The point was denied on both trials but in the last one the jury were instructed to consider the bills in determining the question whether Fleming was a purchaser or a broker in the transaction. The plaintiffs appear to have thought on the last trial that they had discovered something in the testimony of the defendant which might authorize and support a verdict in their favor. [61] The substance of this testimony is that Fleming said on cross-examination that after some of the yam had been delivered to Brook, Shaw asked him if he would guarantee the account, and that he replied that he would if the yarn was up to sample. In considering this conditional offer of guarantee it is well to note that from the time this litigation commenced until the present stage of it the plaintiffs have stubbornly persisted, and still persist, in claiming that they made an unconditional sale of the yarn to the defendant and that there was no conversation between them at any time in reference to a guaranty. Their suit is based on an absolute sale of the yam to him, the pleadings are adapted to it, and all the evidence they have submitted was offered and received for the purpose of establishing it. Under the pleadings there could be no recovery upon a guaranty if one existed. The text-book and cases cited in aid of this branch of their contention afford no support to it, and the learned court below properly disposed of it. The important and controlling question in the case was whether the defendant was a purchaser of the yarn. It was a question of fact determinable on due consideration of all the evidence pertinent to it. The bills rendered by the plaintiffs to the defendant and Ms failure to make any objection to them, the letters written by Brook to Fleming and immediately forwarded to the plamtiffs by the latter, the interviews between the plaintiffs and Brook M regard to the quality of the yam and the loss to Mm M worMng it up, were all relevant to the question and proper matters for the jury to consider M deciding it. It was also exclusively for the jury to determine what credit should be given to the testimony of the witnesses respect-Mg these and all other matters affectmg the issues M the case. The criticism of the charge M regard to matters not already specifically referred to requires no discussion. It appears to us as unwarranted and without merit. Our conclusion is that there is nothing M the Mstructions to the jury or m the rulings upon offers of evidence wMch furnishes any ground for reversrng the judgment. The specifications of error are overruled and the judgment is affirmed.