Minnenberg v. Rash

Opinion by Keller, J., The only issue raised by the pleadings in this case— and, therefore, the only one to be passed upon by the jury — was whether the advertisements which appeared in the Jewish Times and which had been obtained for insertion therein by the plaintiff, had been contracted for by the defendant individually or as the representative of a corporation, or proposed corporation, known as the Royal Amusement Company. This question was submitted to the jury in a charge to which no exception was taken by the defendant — beyond the refusal to give binding instructions in his favor — and was decided against the defendant. The evidence raised an issue of fact which was for the determination of the jury and could not properly have been withdrawn from them by the court. Such of the assignments of error as relate to matters not raised in the court below, but advanced for the first time in this court, will not be considered on appeal: Hurt v. Fuller Canneries Co., 263 Pa. 238; Sullivan v. B. & O. R. R. Co., 272 Pa. 429, 436. Furthermore, as the record stands, they are without merit. The Sales Act of 1915, (P. L. 543) , entitled “An Act relating to the sale of goods,” has no bearing upon a transaction of this kind. No violation of the provisions of the Fictitious Name Act [351] of June 28,1917, P. L. 645, was averred in the affidavit of defense and on the trial defendant’s counsel expressly disclaimed any such defense. He cannot be permitted to avoid that disclaimer here. The contract was made with the plaintiff, personally, and he sued in his individual name. That he subsequently carried on his business as an advertising solicitor under an assumed designation and registered as such, did not affect the validity of the contract; nor did defendant consider himself harmed by the plaintiff’s use of such designation in the exhibit attached to the statement or he would not have waived defense on that score. That some of the advertisements appeared in so-called Sunday editions was not set up as a defense nor referred to on the trial and is plainly an afterthought. It cannot be raised here for the first time, especially with no proof that the editions now objected to were actually printed and issued on Sunday. It is common knowledge that some so-called “Sunday” papers are hawked about the streets as early as Friday night, no less than that a well-known “Saturday” paper appears on Thursday. The remaining assignments must be overruled. The question complained of in the sixth assignment was objected to and ruled out. It was not answered and we are satisfied that it did the defendant no harm, even if it was properly excluded, as to which we express no opinion. No objection was made or exception taken to the offers covered by the seventh assignment. It also violates Rule XIV since it embraces two distinct offers. The amount of plaintiff’s commission or compensation was wholly immaterial. The remaining assignments relate to the exclusion of plaintiff’s certificate of registra: tion and examination concerning the same. As under the pleadings and defendant’s disclaimer this line of examination was irrelevant and immaterial it was properly ruled out. The assignments of error are all overruled and the judgment is affirmed.