Paul v. Eurich

Opinion by Beaver, J., Tried by the rule clearly and concisely laid down in Rod-man v. Thalheimer, 75 Pa. 232, there was nothing in this case to be submitted to the jury. Admitting that Newhauser, the vendee of the plaintiff, was insolvent and that he knew it, there was neither artifice, trick nor false pretense used by him as the means of obtaining possession of the goods purchased from the plaintiff. All that he knew he communicated to the plaintiff’s salesman. Iiis financial condition was fully and frankly laid bare. The salesman testifies: “ I asked him about his financial standing, and he told me that he did not buy anything outside of us, Long & Davidson, Hathaway, Soule & Harrington and Carlisle Shoe Co. He said outside of that that he did zzot owe hardly anything. He told me his father helped him azid his father advanced him money — advanced hizn all the znoney he had in business izi Lebanon; and, if he came to Lancaster in business, he would help him. There would be no trouble whatever. He said he did not owe anything practically outside of his father, and then these bills he bought to opezi his store here. He never told me he had any money from his wife.” This conversation occurred in Lebanon before the rezzzoval of the store to Lancaster. It was a frank adznission that he was then izi debt to sundry parties beside the plaizztiff; that all the mozrey izi his business had been advanced by his father and his hope for the future, if he went to Lazicaster, was in his father, and that the goods necessary to open the ziew store were to be bought upon credit. What more could he say ? If the plaintiffs, upozi these representations, sold the goods, they did so at their own risk. The representations were made on the 2d of February, 1894. The figures representizig the indebtedness were given to the same salesman 24th of May, 1894. How many of the debts enumerated in the schedule were contracted after the 2d of February does not in anjr way appear. Viewed from any standpoizit, we think the trial judge izi the court below was justified in saying to the jury in this case, “ I do not see anything to leave to a jury.” This sufficiently disposes of the first, second, third, fourth, fifth, sixth, seventh, eighth and eleventh assignments of error. John B. Newhauser, the father of the vendee of the plaintiff, for whose use a judgment had been confessed on the 24th of [303] May, 1894, to Henry Eurich, conditioned for the payment of the sum of $6,240.00 by the son, John S. Newhauser, after the levy upon and sale of the goods of the defendant in the judgment and after the issue in this case had been made up, on the 12th of June, 1895, marked the judgment satisfied and released. Upon his application in November following, the court struck from the record of the said judgment the entry of satisfaction erroneously made thereon. The plaintiff in the trial of the case below offered in evidence the judgment and execution in the case of HeUry Eurich, for the use of John B. Newhauser v. J. S. Newhauser, real debt $6,240.00, with interest from April 1, 1894. The object evidently was to show the insolvency of John S. Newhauser. Having used it for that purpose, after his testimony closed, he called the attention of the court to the “ entry of satisfaction on docket entry of Judgment No. 332, April Term, 1894, which has been offered in evidence, dated June 12, 1895,” to which the court replied: “An order has been made to strike off the entry which has not yet been entered.” The action of the court in striking off the entry of satisfaction of the above judgment is complained of and constitutes the ninth and tenth assignments of error. Without stopping to inquire whether the plaintiff could offer this judgment in evidence for one purpose and, after it has served that purpose, allege its satisfaction for a purpose altogether different, or whether the proceedings under which the entry of satisfaction were stricken off could be attacked collaterally in the present proceeding, it is perhaps sufficient for present purposes to say that the plaintiff was in no way injured by the action of the court in striking off the entry of satisfaction. There is no alie- • gation that the judgment was paid beyond the amount realized upon the sale of the personal property of J. S. Newhauser. The rights of the parties to this controversy remained precisely the same after the entry of satisfaction was stricken off by the court on the 2d of November, 1895, as they were on the 12th of June, 1895, before the entry of said satisfaction. The conduct of the plaintiff was not in any way influenced by the entry of satisfaction, nor did he acquire any rights thereby. He has, therefore, not been prejudiced by the action of the court in striking it off. McCune v. McCune, 164 Pa. 611, lays down the principle which governs and should govern in this case. [304] The refusal to admit in .evidence the plaintiff’s offer of the judgment of Emma S. Newhauser v. John S. Newhauser and the execution issued thereon, to be followed by proof that Emma S. Newhauser was the wife of Jolin S. Newhauser, was proper. There was no offer to show that the judgment was fraudulent or, that the indebtedness of the husband to the wife was in existence at the time of the representations made by the husband to the plaintiff’s salesman at the time the goods in controversy in this suit were purchased. The testimony offered could, therefore, have no bearing whatever upon the issue, was clearly'irrelevant and was properly rejected. The assignments of error are, therefore, all overruled and the judgment is affirmed.