Finn-Vipond Construction Co. v. Wolf

Opinion by William W. Porter, J., The defendant is sued by a limited company. The contract was made between the defendant and one, Finn, who claims to be a member of that company. The plaintiff says the contract was made on behalf of the company. The defendant says it was made with Finn as an individual. If Finn acted as an individual, the defendant claims to have a set-off against him, whereas, if the plaintiff partnership was the original and known contracting party, this set-off cannot be utilized. The testimony for the plaintiff shows that it was represented in the making of the contract by one of its members. If the representative capacity of Finn was not disclosed or known to the defendant, the latter was entitled to prove any legal set-off he might have, even as against the plaintiff company. It is but just to the trial judge to say that the defendant does not seem to have put this proposition in form before the court until presenting points of charge. The offers of proof and the rulings requested, however, involved a consideration of this aspect of the case. It was not possible, in view of the offers of proof by the defendant, to limit the issue strictly to the question, whether the contract was made with the plaintiff company, or with Finn, individually. The fact that the plaintiff company acted through one of its members was proved by the plaintiff. When, therefore, the defendant offered proof of set-off as against Finn, with whom it is claimed he made the contract, alleging ignorance of any connection of Finn with the plaintiff company, such proof should have been received and submitted to the jury under proper instructions from the court. “ It is familiar law that if one deal bona fide with an agent as owner, without knowledge of his agency, he may set off any claim he may have against the agent in answer to the demand of the principal: •” Frame v. Coal Co., 97 Pa. 309. [323] We are of opinion further that evidence was admissible on the part of the defendant showing that Finn was doing, as an individual, the kind of work which he had contracted to do for the defendant, at and about the time the contract in suit was made, and that this was known to the defendant. This would go in support of the defendant’s contention that Finn was acting in his individual capacity. What has been said makes it unnecessary for us to pass upon each of the thirty assignments of error filed. The errors discussed run through a number of the assignments, and such of the latter as are to rulings inconsistent with this opinion are sustained. As the case must go back, we have endeavored to express our views of the law applicable to its retrial. We note that no less than five of the assignments of error, based on alleged bills of exception sealed at the trial, are by the record shown to be without such exception. Such an error in the preparation of the appellant’s paper-book is inexcusable. The judgment is reversed and a new venire is awarded.