Cox v. Philadelphia City Pottery Co.

Opinion by Morrison, J., In this action of assumpsit the plaintiff claimed for his services as manager of a pottery company in Philadelphia from February 12, 1901, to March 9, 1904. It appears from the plaintiff’s declaration and his testimony, and the evidence offered from the books of the defendant corporation in support of the plaintiff’s claim, that a jury might have found a substantial sum in favor of the plaintiff. But under the admissions of evidence and charge of the court, the jury found a verdict in favor of the defendant. It appears in evidence that the plaintiff had been in the em [549] ploy of John E. Jeffords for over one year prior to February 12, 1901, under a written contract fixing his salary.at $1,400 per annum, with an additional $350 if the business made a profit of $6,000 or more per annum. The plaintiff’s testimony is quite clear that this arrangement terminated at the end of the first year, and he worked under another arrangement until Jeffords’ business was turned over to the corporation on February 12, 1901. We do not find in the record sufficient evidence to warrant the court in permitting the jury to find that the plaintiff worked for the corporation under the contract above referred to. By its terms the contract was for one year from May 1, 1899; the parties were Cox and Jeffords; the business was discontinued by Jeffords in February, 1901. Nothing was shown to connect this contract with the employment of Cox after May 1,1900. On this point Cox testified: “ I had a contract for one year from May 1,1899, to April 30,1900. Q. And you continued right along under that contract? A. I did not. Q. When did you change? A. The first of the year. Q. The first of what year? A. 1900. December 30, 1900, my salary was entered up at $1,750 a year in their books. Q. And that is the contract under which you went to work for John E. Jeffords and continued to work for the Philadelphia City Pottery Company? A. That is the contract I worked under for John E. Jeffords for one year.” The first assignment of error raises the question of the admissibility of the written contract referred to, dated April 25, 1899, accepted April 29,1899, by William Cox. In our opinion, there was not sufficient evidence to warrant the court in permitting the jury to find that the plaintiff worked for the defendant corporation under that contract and, therefore, we sustain the first assignment of error. The second and third assignments relate to the admission of the testimony of Robert D. Yollum and the refusal to strike it out. He was an expert witness called by defendant to prove the profits and loss of the defendant company based on said contract. This for the purpose of showing that in none of the years that the plaintiff was employed by the corporation did the profits amount to $6,000. We think these assignments must be [550] sustained on two grounds: (a) It was not shown that the plaintiff was employed under that contract, and (b) if the defendant had been entitled to prove the profits of the business, it was error in the court to allow Vollum to testify, as an expert, to what the books and invoices showed, without the same being produced and offered in evidence. Upon the latter question our attention has been called by the defendant to the following cases: Phila. v. Neill & Lincoln Savings, etc., Co., 211 Pa. 353; 12 Am. & Eng. Ency. of Law (2d ed.), p. 428, and Jordan v. Osgood, 109 Mass. 457 (the latter case is a footnote on p. 428, vol. 12 Am. & Eng. Ency. of Law). The exact language on this point is: “An accountant who has examined certain books and schedules which have been introduced in evidence may state the results of his computation therefrom not involving mere inferences.” We also call attention to Ryder v. Jacobs, 182 Pa. 624, in the syllabus of which we find: “ Whether a witness be a competent expert, and whether the contention be such as calls for expert testimony, is largely in the discretion of the trial judge.” See also Building Society v. Holt, 184 Pa. 572, where Mr. Justice Dean (p. 577) said: “As to the second assignment, the secretary of the society was asked if Holt had not always been recognized by the society as the owner of the stock after the alleged transfer. This question, on objection by plaintiff, was overruled. The ruling was correct; the object was to elicit an opinion formed from the entries in the society’s books and the declarations in the mortgage. The court and jury were just as capable of forming an opinion from these facts as the witness, and that is what they were there for.” The above cases and others recognize that the question of admitting expert testimony in a given case is largely discretionary with the court below. This principle we do not question, but from all the cases we reach the conclusion that a court cannot properly exercise its discretion as to whether or not expert testimony should be received to show, for. instance, the profits and losses of a business, without the books and invoices being produced and offered in evidence. It must be conceded in the present case that the jury passed upon the question of profits on the testimony of Vollum who had examined the books and papers, but they were not in court and of course were not in evidence. [551] It may be that the books and invoices were so plain that the court and jury could readily determine whether or not the profits amounted to or exceeded $6,000 per annum. We thus have the plain case of a court exercising its discretion in allowing expert testimony as to what profits the books and invoices showed, without seeing the same. This we think is clearly wrong. The second and third assignments are sustained. The fourth assignment raises the question of the correctness of a portion of the charge of the. court. This part complained of is the logical result of the errors raised by the first, second and third assignments, and having sustained those, it follows that the fourth assignment must also be sustained. We are quite clear that the evidence did not entitle the defendant to have the contract of April 25,1899, in evidence. The assignments of error are all sustained and the judgment reversed with a venire facias de novo.