Livingston v. School Board

Opinion by Oklady, J., When this case was before this court in a former appeal the essential facts were set out at length: 9 Pa. Superior Ct. 110. The judgment of the court below was then reversed and a venire facias de novo awarded, and it is not necessary to repeat the reasons for so deciding, but the record submitted on this appeal presents questions not raised on the former one. When a judgment is reversed by our appellate courts and a venire facias de novo is refused, the judgment of reversal does not constitute a bar to another suit for the same cause of action : Fries v. Penna. R. Co., 98 Pa. 142; Wrasse v. Traction Co., 146 Pa. 417; Ellis v. Ins. Co., 9 Pa. Superior Ct. 392. The award of a venire de novo is in no instance anything more than an order for a new trial in a cause in which the verdict or judgment is erroneous in matters of law: United States v. Hawkins, 35 U. S. 125; Co-op. ed. 369. A trial de novo does not mean a trial on appeal with nothing but the record to correct errors, but is a trial on the entire case anew: Shultz v. Lempert, 55 Tex. 273. In Kemmerer v. Young, 5 R. 175, our Supreme Court says: “ The judgment of this court did not divest any right the parties might otherwise possess after the [364] cause was remanded. No decision took place here on the right of the defendants to add a new plea. Under the circumstances the defendants retained the right given them by the act of assembly to add a new plea before the trial of that issue.” This court adjudicates on what is before it, and sometimes remands with instructions, but it does not undertake to mould the pleadings preparatory to a trial below. After a venire facias de novo the case stands in the court below subject to the provisions of the act of assembly (March 21, 1806, 4 Sm. L. 326, sec. 6), and as in other cases the defendant may alter his defense or plea on or before the trial. After the return of the record to the court below the defendant filed a supplemental affidavit of defense in which it was alleged, first, that the order sued on was fraudulently obtained, second, that it had been altered in a material part to the prejudice of the defendant, and third, that the maps and cases delivered had not the value claimed. The defense as presented at the last trial eliminates from the case the right or duty of the defendant to pay the money into court, as its denial of liability affected the whole claim, as well as the plaintiff’s right to recover any part of it. The theory of the use plaintiff was that the Central School Supply House had been paid in full, in support of which he adduced evidence, and, the court affirming his third point, the solution of that fact was distinctly transferred to the jury, which tribunal determined it against him. The point was as follows: “ If the jury believe that the Central School Supply House and A. I). Meloy have received from the use plaintiff payment in full of all their interest in the contract, then their verdict must be for the use plaintiff for the full amount claimed, and no formal assignment of the claim on the contract is necessary, because equity presumes that to have been done which ought to have been done.” The converse of this proposition was presented by the defendant’s first point viz,: “ If the jury are not satisfied under all the evidence in the case that the Central School Supply House has received all the money due it on the sale of he maps and cases to the South Middleton school district, but that there is money still due said Central School Supply House, then the plaintiff is not entitled to recover; ” which was also affirmed. From the plaintiff’s presentation of the case, the state of the account of [365] A. D. Meloy with the supply house, as to this particular transaction, was necessarily a material fact. On no other condition could the use plaintiff claim that he was entitled to use the name of legal plaintiff ón the indorsement of Meloy. In the plaintiff’s examination of Meloy is the following: “ Q. Mr. Meloy, the contract is in evidence between you and the Central School Supply House. How many sets of maps did you buy from them?’ A. Two hundred sets. Q. What was in a set ? A. Seven maps to a set. Q. Cases furnished with them? _A. Cases furnished with each set of maps. Q. You paid how much ? A. I was to pay, I had already paid for them by issuing my notes. I was, however, required upon each sale to remit to them one half of the sum received as a credit on my notes, and if they got the money I drew my half, and the other one half should go as a credit on my notes. The goods had already been purchased, and they héld my notes as collateral. ... I made the check straight $800 in order that they might get the benefit of that much either way, and that $300 which I sent to them paid every equity they had in the cases, and the maps which were shipped to the South Middleton School Board, it being credited on my notes, and entirely wiped out the transaction so far as the Central School Supply House was concerned.” On the part of the defendant, in reference to the maps and cases that were shipped on Meloy’s order to the school district, the president of the supply house testified as follows: “Q. Have you been paid for them? A. No, sir, not one cent*; we have never received a cent yet.” In regard to the second warrant issued by the school district, as follows: “Q. Has ever a dollar been paid on it ? A. We have never received a cent. Q. From anybody? A. No, sir.” Asan admission of facts on the part of the defendant, and in order to relieve the use plaintiff of the necessity of proving them, 'he adopted, in making out his case in chief, the unusual method of using a statement from the opinion of this court in the former appeal, which was without precedent or authority to justify it, and should have been rejected as irrelevant to the issue then before the court. The case was tried throughout on the lines suggestedby the plaintiff’s third and the defendant’s first point, and while there are some irregularities ■ in the record, they are not of sufficient importance to warrant a third trial of this case. The judgment is affirmed,